Burr v. . Wilcox

22 N.Y. 551

• Court: New York Court of Appeals
• Decided: December 5, 1860
• Status: Published

Opinions

The counsel for the defendant contends that, as the stock was subscribed for in the name of Jordan, although really for Wilcox, the latter was not a stockholder within the meaning of the statute; and he says that the spirit of the doctrine upheld in the authorities to which he refers is, that only those having the legal title are stockholders, and that the court can only look to the legal title in determining who are liable under the 10th section of the statute.

Supposing, for a moment, that the counsel is correct in this position, can it be truly said that Wilcox was merely an equitable owner of this stock? Jordan subscribed for this stock for Wilcox, as one of the original subscribers, at Wilcox's request: on the 15th April, 1853, it was apportioned to Jordan for Wilcox, as appears on the records of the company. Wilcox himself paid for the stock, in monthly installments, the company receiving it from him as principal; and when all his installments were paid, he received, on the 6th of February, 1854, his certificate of stock. Under these circumstances, he was, I think, a legal, and not merely an equitable, owner of the stock. Jordan acted merely as his agent; the relation between him and Wilcox was not of a trustee and cestui quetrust, but that of principal and agent; which, although, in a certain sense and for certain purposes, involving the idea of a trust, does not make the principal the equitable, and the agent the legal, owner of everything he buys for the former in his own name, particularly when he discloses the name of his principal. If it is known to the seller that the agent acts on behalf of another, and that other is recognized by the seller as the real owner, the principal is at once entitled to the possession of the thing purchased. So, in this case, the certificate of stock was issued to Wilcox in his own name; and, although the name of Jordan was originally employed, the certificate of stock, in view of the whole circumstances, related back to make Wilcox the legal owner from the commencement of the transaction. He was entitled to demand a share of the profits from that time, if any profits accrued: he then became a stockholder, and continued to be a stockholder at the time this action was commenced. The appellant's counsel seems to insist that a transfer of stock in a transfer book is necessary to constitute a person a stockholder. After the original issue of stock, perhaps, any subsequent holders, in order to be made liable, should have the stock transferred to them on the books, or their names as stockholders should appear in the index book, or in the register of stockholders. But, in the present case, Wilcox was an original subscriber, through his agent Jordan; and, of course, no transfer, as from an old to a new stockholder, was requisite. The stock was issued, not transferred, to him.

The minor objections taken by the defendant's counsel, are equally untenable.

The judgment of the Superior Court of New York should be affirmed.