Opinion of the Court. a suit of stockholders against the directors of a bank for damages and losses sustained through their negligence, fraud and mismanagement of the affairs of the bank. The Supreme Court of Louisiana held this to be an action for damages ex contractu against mandataries, or agents. We have looked into the Louisiana reports to some extent and have not been able to find any decisions contrary to the general tenor of those on which this court relied in Case v. The Citizens' Bank. If, therefore, the defendant can only plead prescription of ten years, the question remains, whether it is available in this case; and it would seem to be clear that it is not. For though the transfer complained of took place in 1853, the widow de St. Romes brought her action in 1861, after the lapse of only eight years; and it was not terminated until 1868. The complainant commenced her action in the state court in 1876, after an interval of only eight years, and this action was not terminated until 1882. The present action was commenced in the same year. So that there has never been an uninterrupted period of ten years in which prescription could run. It follows that the defence of prescription fails. Civil Code, art. 3518 (3484); Riviere v. Spencer, 2 Martin, 79, 83; Badon v. Bahan, 4 La. Ann. 467, 470; Turner v. McMain, 29 La. Ann. 298, 300. The defendant's counsel feeling, no doubt, the uncertainty of the defences referred to, dwelt with much emphasis and ingenuity upon the presumptive proofs of the transfer of the stock being made by Deverges with the knowledge and authority of Madame de St. Romes. It is unnecessary to say more on this subject than that the proofs referred to fail to satisfy us that any authority was given, or that the transfer was acquiesced in. The Supreme Court of Louisiana entertained the same opinion in the case brought in 1861, and very clearly expressed it, although they made no decision on the subject in consequence of what they considered a want of proper parties. The decree of the Circuit Court is reversed and the cause remanded with instructions to take further proceedings in conformity with this opinion. Opinion of the Court. ROBBINS v. ROLLINS'S EXECUTORS. ROLLINS'S EXECUTORS v. ROBBINS. APPEALS FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Nos. 237, 861. Argued April 18, 19, 1888. Decided May 14, 1888. Analyzing the contract which is the subject of litigation, and which is set forth at length in the opinion, this court holds that the court below was in error in sustaining and allowing against Robbins Rollins's claim for the payment of the two mortgages or deeds of trust, and subrogating him to the rights of the mortgagees Low, and the Mutual Benefit Life Insurance Company; and that the deed of subrogation from the latter company to the German-American Savings Bank was wrong and unauthorized, and should be vacated and declared void without the necessity of the intervention of a cross-bill for that purpose. IN EQUITY. Both parties appealed from the final decree. The case is stated in the opinion. Mr. H. H. Wells and Mr. Samuel Shellabarger for Rollins's Executors. Mr. John Selden and Mr. George F. Edmunds for Robbins. MR. JUSTICE BRADLEY delivered the opinion of the court. The bill in this case was filed on the 25th of October, 1883, by Edward A. Rollins, of Philadelphia, against Zenas C. Robbins, of the city of Washington, to recover $122,000, with interest, and, on the failure of Robbins to pay the same, to have certain property in Washington, of which Rollins claims to be mortgagee in possession, sold to satisfy said claim. Rollins, the complainant, claims title to the matter in suit, by purchase in November, 1880, from one Keyser, the receiver of The German-American Bank; and said bank derived title from The German-American Savings Bank of Washington by purchase in October, 1877; and the latter. acquired their principal interest in the matter from John Hitz, William F. Mattingly, Opinion of the Court. and Charles E. Prentiss by deeds dated in May and June, 1875 the said Hitz, Mattingly, and Prentiss having procured the said interest for the said savings bank in the manner hereafter mentioned. The transactions out of which the controversy took its rise were as follows: In 1873, the defendant Zenas C. Robbins was in possession of the property known as the Federal Building, situated on the southeast corner of Seventh Street and F Street northwest, in the city of Washington, immediately opposite the Post-Office Department Building, being one hundred feet on Seventh Street and 129 feet 3 inches on F Street. Part of this property, namely, the one hundred feet front on Seventh Street, and forty feet deep on F Street, he owned in fee simple; the rest of it, 89 feet 3 inches on F Street, and 100 feet deep, lying immediately in rear of the first part, he held by leases, with contracts giving him the privilege of purchasing the fee at any time during the continuance of the leases. This leasehold portion was divided into four lots fronting on F Street, and each running back from F Street one hundred feet in depth, and he had a separate lease and contract for privilege of purchase on each; the rent of each being sixty dollars per month, amounting to $2880 per annum for all four lots; and the purchase prices, at which he had the privilege of purchasing the lots, were respectively $8000, $12,000, $12,000, and $10,000-the whole amounting to $42,000. The lot owned by Robbins in fee, fronting on Seventh and F streets, was incumbered by two mortgages, or deeds of trusts in the nature of mortgages, one for $10,000 held by one Daniel Low, and the other for $25,000 held by The Mutual Benefit Life Insurance Company of New Jersey. There was also a judgment lien of $10,500 on the leasehold property. In or about August, 1873, the Board of Public Works of the city of Washington cut down the grade of the streets around Mr. Robbins's corner several feet, and rendered the buildings on his property somewhat insecure; the board, pretending that they were in danger of falling, in October, 1873, ordered them to be taken down and removed. Robbins remonstrated, and some arrangement was made for strengthening them. Opinion of the Court. Robbins claimed damages against the city for the injury done to his property, and an award of $4098 was afterwards made and paid to the bank, after it came into possession of the property as hereafter mentioned. On the 10th of September, 1873, Hitz, the president of The German-American Savings Bank, and in its interest, made a contract with Robbins to purchase the whole property, of which the following is a copy: 66 "WASHINGTON, D. C., September 10th, 1873. Agreement between Zenas C. Robbins and John Hitz, both of the city of Washington, District of Columbia. "The said Robbins does hereby agree to sell unto the said Hitz, his heirs or assigns, the real estate at the northwest corner of square numbered four hundred and fifty-six (456) in the city of Washington, D. C., for the sum of one hundred and seventy thousand- dollars, said property fronting one hundred (100) feet on Seventh Street and one hundred and twentynine (129) feet four and one half (44) inches, more or less, on F Street. Forty (40) feet on F Street, at the corner of Seventh Street, by one hundred (100) feet, more or less, in depth, is owned by said Robbins in fee. Twenty (20) feet on F Street, by one hundred (100) feet in depth, more or less, is a leasehold, with privilege of purchase, for $10,000.00. Twentythree (23) feet on F Street by one hundred (100) feet in depth, more or less, is a leasehold, with like privilege, for $8000.00. Twenty-three (23) feet on F Street by like depth is leasehold, with like privilege, for $12,000.00. Twenty-three (23) feet four and one half (44) inches on F Street by like depth is leasehold, with like privilege, for $12,000.00. Said sale is to date as October 1st, 1873. "All taxes upon said property are to be paid by said Robbins, including the taxes for the year ending June 30th, 1873, and all rents up to October 1st, 1873, are to be received by him, provided none of said rents are payable in advance. All rents due on said leasehold property up to said October 1st, and all interest on incumbrances, are to be paid by said Robbins. Opinion of the Court. "All rents subsequent to said October 1st are to be received by said Hitz; said Hitz is to assume the incumbrances on said property, viz.: Deed of trust to Daniel Low 1 127 $10,000 00 53.5 21 $170,000 00 "Any other incumbrances are to be paid by said Robbins, and the conveyance to said Hitz is to be free from any dower right in the wife of said Robbins. "The purchase by said Hitz is conditional on his approval of the title to said property and the increase by the GermanAmerican Savings Bank of its capital stock according to law. "Z. C. ROBBINS. [SEAL.] "JOHN HITZ. [SEAL.]" Robbins in his testimony says that immediately after signing this contract he went to Virginia to visit some friends, and did not return until the first of November, 1873. He says that he then found the Bank in possession of all the property, and proceeds as follows: "A few days after my return from Virginia Mr. Hitz came to me and made me this proposition: He said that if I preferred to change the sale into a lease of the property perhaps we could make a new negotiation, and he made this proposition—that he and his associates, Mr. Mattingly and Mr. Prentiss, would take the property on a ten years' lease; would pay the purchase money under the four leases; would pay the VOL. CXXVII-40 |