§ 556. In general a bill in equity does not lie to redeem property from a pledgee, because the remedy at law upon a tender of the money is ample;' the remedy at law being either a possessory action to recover the thing pledged, or an action of trover to recover its value.2

A special ground for proceeding in equity must be shown, as that a discovery is necessary or that an account is wanted, or that there has been an assignment of the pledge.

Thus, if the pledgee is insolvent and has transferred the pledge to another who resides without the state, a court of equity will intervene for the relief of the pledgor, and upon proper bill filed compel a restoration of the pledge.*

§ 557. A bill in equity may be maintained to redeem a pledge, if an account is wanted, or if there has been an assignment of the pledge, notwithstanding the pledgor has a remedy at law, in an action of trover. But if the ground be the necessity of an account, the account must be a real one; that is, there must be a series of transactions on both sides, and not merely one item on one side and a number of set-offs on the other." If the pledge secures a money account of such a nature that

1 Roland v. Lancaster County Nat. Bank, 135 Pa. St. 598, 19 Atl. Rep. 951; Doak v. Bank of the State, 6 Ired. (N. C.) 309; Durant v. Einstein, 5 Robt. (N. Y.) 423, 35 How. Pr. 223; Genet v. Howland, 45 Barb. (N. Y.) 560; Flowers v. Sproule, 2 A. K. Marsh. (Ky.) 54, 56.

In Colorado, without showing any special ground for proceeding in equity, an equitable action was maintained to redeem a pledge, and the court ordered the pledgee who was in possession of the pledged property to deliver it to the pledgor, instead of merely giving a judgment for posses

2 Nelson v. Owen, 113 Ala. 372, 376, sion. Colburn v. Riley, 11 Colo. App. 21 So. Rep. 75. 184, 52 Pac. Rep. 684.

Kemp v. Westbrook, 1 Ves. 278; Story Eq. Juris., § 1032; Hasbrouck v. Vandervoort, 4 Sandf. (N. Y.) 74.

Nelson v. Owen, 113 Ala. 372, 21 So. Rep. 75, quoting text, and citing Pollak v. Janney, 100 Ala. 561, 13 So. Rep. 661; White Mountain R. Co. v. Bay State Iron Co., 50 N. H. 57; Hasbrouck v. Vandervoort, 4 Sandf. (N. Y.) 74.

5 Kemp v. Westbrook, 1 Ves. 278; Vanderzee v. Willis, 3 Bro. Ch. 21; White Mountains R. v. Bay State Iron Co., 50 N. H. 57; Merrill v. Houghton, 51 N. H. 61; Hart v. Ten Eyck, 2 Johns. Ch. (N. Y.) 62, 100, per Chancellor Kent.

Durant v. Einstein, 35 How. Pr. (N. Y.) 223, 5 Robt. 423.

the debtor would not be presumed to know the amount of his indebtedness, it is not essential that he should tender the amount before filing a bill to redeem. In fact, in such case, to obtain an accounting is one of the objects of the bill, and it is sufficient if the debtor proffers to pay whatever is found due on such accounting.'

Where a corporation has pledged all its stock to secure the debt of a stockholder who practically controls the corporation, the equitable owner of a part of such stock may maintain a bill in behalf of the corporation as well as in his own behalf to redeem the stock, and such suit is not subject to the objection that it divides the claims against the pledgee.'

Where the pledge secures an open account it is not essential that the pledgor should make a tender before filing his bill to redeem. It is sufficient for him to demand the items of his account, and show himself willing to pay whatever is found due. The offer of redemption in his bill is sufficient."

Where the debt secured by a pledge was by agreement to have been determined at the time of the transaction, but was left undetermined and remained so when a bill in equity to redeem was brought, it was held that there was a good ground for equitable relief; and it does not matter that the pledgor has made a tender to redeem the pledge and the pledgee has refused the tender. In such a case the court of appeals of New York said: "There can be no doubt that a sufficient cause of action in equity is stated in the complaint. To turn the bill of sale into a collateral security merely, and then to redeem the pledge upon payment of the debt to be ascertained by an accounting, is clearly proper subject-matter for an equitable action. But the appellant principally relies upon the contention that the complaint discloses on its face the fact that plaintiff has an adequate remedy at law, and so there is no ultimate right to equitable relief. The claim is that, having tendered eighteen hundred dollars and demanded a return of the goods, he may

1 Beatty v. Sylvester, 3 Nev. 228. 'Higgins v. Lansingh, 154 Ill. 301, 40 N. E. Rep. 362.

3

Beatty v. Sylvester, 3 Nev. 228; Stapp v. Phelps, 7 Dana (Ky.) 296.

sue at law and recover the embroideries (the goods pledged) by a replevin. That remedy would, perhaps, be adequate if there was no question about the amount of the debt, but is certainly not adequate where the amount is in dispute and wholly uncertain. The plaintiff was not bound to peril his whole right by an adoption of the legal remedy, but was at liberty to redeem in equity where an accounting could be had and the ascertained debt be paid.""

§ 558. Where the property pledged is stock in a corporation, and the shares have been transferred upon the books of the company to the name of the pledgee so that he has the legal title, equity alone can restore possession of the shares to the pledgor, by an order for redelivery. The transaction is a pledge, although the legal title passes to the pledgee; but it partakes of the nature of a mortgage, and it would seem that the remedy for redemption should be the same as upon mortgages. If the pledgor seeks for an account of receipts and dividends, although the law could afford a remedy by assumpsit for these alone, equity has also jurisdiction, and more particularly where the relief could not be obtained at law except by a multiplicity of suits."

When stock is held as collateral security for an anticipated loss upon a mortgage not yet foreclosed of a house, upon a bill to redeem the stock, the court, in order to ascertain the amount of such loss, will order the house to be sold, unless the pledgee will accept the decision of a master as to the value. The pledgor in such case having authorized the pledgee to let the mortgaged house until it should be sold, but never afterwards having requested him to sell it, the pledgee is not guilty of laches by waiting more than five years without selling it. Such delay does not show an election on his part to take the prop

1 Castoriano v. Dupe, 145 N. Y. 250, 252, 39 N. E. Rep. 1065, 64 N. Y. St. Rep. 688, per Finch, J.

Am. Dec. 69, 29 Md. 473; Hasbrouck v. Vandervoort, 4 Sandf. (N. Y.) 74. 3 Bartlett v. Johnson,9 Allen (Mass.)

'Bryson v. Rayner, 25 Md. 424, 90 530.

erty for his own, at its cost, and to waive all claim against the pledgee for the loss.'

§ 559. It has also been held that a court of equity may compel a specific delivery to the pledgor of a note or mortgage held in pledge after the debt secured has been paid, on the ground that the pledgee's retention of the property is in violation of a trust. But such a proceeding in equity is exceptional in practice and questionable in principle, because full compensation for a failure or refusal to surrender the property pledged after payment of the debt secured can be had in a suit at law, except in case the pledge be an ornament or heir-loom having a special value to the owner, for the loss of which damages in money would be no adequate compensation.

§ 560. Upon the death of the pledgor, his right to redeem may be enforced by his representatives; and, on the other hand, upon the death of the pledgee the pledgor may enforce his right of redemption against the pledgee's representatives.'

§ 560a. Upon redemption a pledgee is entitled to charge payments he has made to keep the pledge alive. If a policy of insurance is pledged as security for the debt of the assured, and the pledgee pays the premiums in order to keep the policy alive, the beneficiary, who joined with the assured in pledging the policy, is entitled to redeem the policy only upon paying, in addition to the amount of the debt with interest thereon, the amount of the premiums paid by the pledgee, with interest

1 Bartlett V. Johnson, 9 Allen and we suppose a pledge of personal (Mass.) 530.

2 Brown v. Runals, 14 Wis. 693. By the Court, Cole, J.: "Where a party obtains possession of chattels through some trust or fiduciary relation to the owner, and then attempts to hold the possession wrongfully, a court of equity may entertain a suit for specific delivery of the thing withheld. The subject of trusts is a matter peculiarly of equitable cognizance,

property creates a trust in respect to such property. The pledgee has a right to retain and hold the property pledged until his debt is paid, and then he is bound to restore it to the pledgor. Thus a fiduciary relation is created between the parties in respect to the pledge, from which arise various obligations and duties."

Cortelyou v. Lansing, 2 Caines Cas. 200.

from the time of each payment; and such beneficiary is not obliged to pay interest on the amount of the premiums so paid, at the rate of two per cent. a month where this is the rate stipulated to be paid by the pledgor on the debt secured.'

The pledgee may also deduct expenditures for taxes and for removing liens upon the property so as to protect the title, and for reasonable expenses in the care of the property."

If a plaintiff in a bill to redeem shares of stock pledged as collateral security for two several liabilities sets forth and offers to pay only one of them, so that an amendment is necessary before the bill can be maintained, he can have no costs up to the time of the amendment; and if the defendant has wrongfully denied the plaintiff's right to redeem on any terms, he should have no costs up to the same time.'

IV. Action for Conversion by the Pledgee.

§ 561. An action to redeem the pledge is not the pledgor's only or usual remedy for the recovery of it after payment or tender. He may sue in trover for a conversion of it, and this is the more usual and the better remedy when the pledgee either refuses to return it upon demand or has willfully disposed of it so as to put it out of his power to return it.' "Whatever rights the pledgee may have during the continuance of his special property, when the obligation is discharged and the property released, the pledgor is entitled to the thing pledged. When the special property of the bailee ceases, the general owner may have his property, and if it has been converted by

Kendall v. Equitable Life Assur. Soc., 171 Mass. 568, 51 N. E. Rep. 464. 2 Furness v. Union Nat. Bank, 147 Ill. 570, 35 N. E. Rep. 624.

As to counsel fees paid for protecting the title to the property, see Work v. Tibbits, 87 Hun (N. Y.) 352, 34 N. Y. Supp. 308.

3 Bartlett V. Johnson, 9 Allen (Mass.) 530.

Luckey v. Gannon, 37 How. Pr. (N. Y.) 134, 1 Sweeny 12; Campbell v. Parker, 9 Bosw. (N. Y.) 322; Flowers v. Sproule, 2 A. K. Marsh. (Ky.) 54; Niles v. Edwards, 90 Cal. 10, 27 Pac. Rep. 159; Loughborough v. McNevin, 74 Cal. 250, 14 Pac. Rep. 369, 15 Pac. Rep. 773.