Fraser v. City Council

11 S.C. 486, 1870 S.C. LEXIS 52

• Court: Supreme Court of South Carolina
• Decided: April 16, 1870
• Docket: CASE No. 716
• Status: Published

Opinion

The opinion of the court was delivered by

Haskell, A. J.

Both parties appeal. The first, second and third grounds of appeal on the part of the city council are upon points which had either been already decided at the former trial, and not appealed from, or do not properly arise in the present case — at least at this stage of the proceeding. The fifth ground of appeal raises an objection to the appointment of a receiver. That point had been decided by the former judgment in this case and assented to by all parties, and is not a proper subject of appeal. The sixth ground is wholly without foundation. It will be time to appeal after something to appeal from has arisen. There is no evidence that the receiver has recognized any of the notes referred to, or that their validity will be recognized except upon proper legal evidence.' To set aside what has already been fixed by judgment and not appealed from, or by consent of the parties, can only be done upon proceedings for which the. Circuit judge, in this case, made ample provision. The fourth ground of appeal is upon the finding of facts by the Circuit judge. This court is unable to perceive either a lack of evidence to warrant such finding, or such preponderance of evidence on the other side as would justify a.reversal of the finding. The court is impressed with the force of the proposition that the hypothecation of such securities by the legal owner, or by another person with the previous consent or subsequent acquiescence of the legal owner, without endorsement or power of attorney, may constitute, by delivery, an equitable assignment, and act as an estoppel against the legal owner and creditors claiming through him. The question was not made in the court below, or, at least, has not received adjudication, and there is no appeal upon that ground. But, apart from that, the evidence does not give foundation of fact sufficient for the proposition of law to rest upon. There is no evidence to show that any of the parties to the transaction, or the officers of the city government by whom the transfers were made, were ever aware of or misled or induced by any expression of knowledge or acquiescence on the part of the testator. On the contrary, the evidence is conclusive that reliance was placed solely upon what was taken to be the signature of the testator, and there is no evidence of any negligence on his part which could be charged with contributing to the mistake on their part. In the eye of the law it is the same as if there had been no signature on the certificates of stock. The absence of signature was notice of lack of authority, and put the parties on their guard. The case would be different if the legal owner had been asked and had expressed his assent. There is no evidence that the testator knew of any of the transactions out of which these questions arise. Of course this does not refer to certificate No. 7, which is not now being considered. It is true that there is testimony of some general expressions made by him, but there is no link to connect them with the special transactions which are before the court. He could not have acquiesced in the transfers of the legal title to the stock, for the transfers were made after his death; that, therefore, cannot be in question. The question is as to the hypothecation, and the essential fact is that the certificates, being in the possession of another person, were hypothecated or sold by him without authority in Writing, but with the knowledge and consent or subsequent acquiescence, with or without previous knowledge, on the part of the legal owner. Did such fact exist, or is there any evidence to give it color ? The evidence upon which it rests is parol testiihony, given by members of the family and intimate friend's of the testator. They testify as to language used by the testator in conversation with them severally or together at different times, but not in the transaction of business. The drift of all this testimony is, that the testator had himself assigned the certificates by proper en- ■ dorsement in writing, or, as it is said by one of the witnesses, “ signed away the last of his city stocks.” This directly contradicts the fact on which the whole argument rests, viz., that although he had not “signed away” the certificates, he nevertheless had delivered them, and consented to, or afterwards acquiesced in, uses to which they were to' be or had been applied without authority of law. The truth is that these witnesses, testified to prove, by corroborative statements of the deceased, that the signature on the certificates Avas in his handwriting. They did not, nor did they mean to, say that he acquiesced, or made any expression of acquiescence, in assignments which ■ he had not made. Besides, there is no evidence that any of these certificates were pledged prior to July, 1871, just six months prior to testator’s death, but nearly all, certainly, Avere pledged Avithin that time, and some within a very short time before his death. The brevity of time, together with the great age of the testator, speak strongly against the probability of his having become acquainted with the facts as they have been developed by the trial, and there is no evidence that any of the parties to any of these transactions communicated to him that a certificate or certificates had been pledged. Such being the circumstances, some of the statements on which stress is laid are dated by the witnesses as having been made about eighteen months prior to the death of the testator, and twelve months prior to the time when the first of the transactions on which these statements are brought by the appellant to bear have been found to have actually occurred. With these remarks, made to prevent any impression that this court has decided upon the legal point made in the argument, but which is not involved in the case, the appeal on behalf of the city of Charleston must be dismissed.

The plaintiffs appeal from so much of the judgment as relates to scrip No. 7 of the city stock, and from so much as gives to the receiver leave t® " institute such proceedings as he may be advised may be proper and necessary to try the validity of any claims against the estate of Joseph Whaley, and defend such proceedings as may be instituted against him.” The prayer of the appellants’ complaint asks that a receiver may be appointed to take possession of the property and its proceeds, and administer the same in the place and stead of the executor. The previous judgment in the case had granted the prayer and appointed a receiver clothed with power to administer in the place and stead of the executor, and no appeal was taken. The court had thus taken possession of the property, and is bound to see to its proper administration. The right to prosecute and defend the legal rights of an estate is absolutely essential. It could rest in no one more properly than in the officer of the court appointed to act in the place and stead of the executor. The judgment goes no further than that, and furnishes no ground for appeal. The leave to “ try the validity of claims ” by the institution of proper proceedings 'is, indeed, purely directory. If, when proceedings 'have been instituted, they are erroneous in any respect, objection can then be taken and judgment can be had. As the case now stands, the court sees nothing in this point that requires consideration.

The other matter of appeal is the judgment that, "as matter of law, * * * Joseph Whaley was divested of the stock represented by scrip 7, by endorsing the same to H. G. Loper, cashier, and the subsequent sale of the stock by Loper in pursuance of his contract with Joseph Whaley.” Whatever may be the room to argue, generally, that power of attorney is revoked by the death of the donor, it does not affect the conclusion •arrived at in this case. If the stock had not been transferred and sold, and the bank were now to bring an action upon the facts as found, the executor would be ordered to make the transfer. If nothing has been which the court would not have ordered to be done, it is not the disposition of the court of equity'to have it all undone because of immaterial informalities. The creditors have no rights which Joseph Whaley would not have had. “A •creditor is not a purchaser, and cannot assert any right.that could not have been enforced by the debtor. Hence an assignment' which is valid as between the parties will also be good against •creditors. Westoby v. Day, 2 Ellis & Bl. 605. And it has been held to follow that the delivery of a certificate of stock to a purchaser, attended with a power of attorney to transfer, will confer .a right that cannot be impeached or set aside by a subsequent execution or attachment against the vendor.” Ryall v. Rowles, Lead. Cas. in Eq. Part II., Vol. II., (4th ed.) 1661; Id., p. 90; Bank v. Campbell, 2 Rich. Eq. 179; Moss v. Bratton, 5 Rich. .Eq. 1. The rights of a creditor are subordinate to equitable as well as legal rights against the debtor. Bank v. Campbell, supra. The testator had signed the scrip in blank, and delivered it. It makes no difference whether the sale or pledge was made in person by the legal owner or by a party to whom he delivers it with a blank power. The pledge in this case seems to have been made by the party to whom delivery had been made by the original or legal owner. There is no difference between a sale and a pledge on the point now in question. There is no question about the right to redeem; no objection to the price for which the stock was sold, and no fraud charged. The sole question is that propounded in the order remanding the case, viz., Had the testator been divested of his title, and was the right of ownership in another at the time of testator’s death? If he had been divested of his title, that is an end of the matter so far as these appellants are concerned, and that is all that is before the court for consideration. The bank came honestly into possession of the endorsed certificate in the ordinary course.of business, “and is entitled to hold it against him who passed it, or enabled another to pass it to him.” State Bank v. Cox, 11 Rich. Eq. 344. There is no real difference between that case of the Bank v. Cox and this case. The power of attorney in each instance was blank. The fact that in Bank v. Cox there was a form of a power, and in this case nothing, is a distinction without a difference. Each was lacking until something was written by the holder over the signature of the endorser, so that in legal effect they are the same. The death of Joseph Whaley makes no difference. The executor-of Madame Szeniere would have had no more power than she possessed. < All the authorities agree, though some go much further, that the delivery of the certificate of stock, endorsed with a blank power, and for value, is an equitable assignment which binds the legal owner, and that it arises from a power coupled with an interest which is irrevocable during the lifetime, and is not revoked by the death of the legal owner. The case of' Hunt v. Bousmamer, 8 Wheat. 174, was decided upon the ground that the power was not coupled with an interest, and therefore did not amount to an equitable assignment. The delivery of the certificate of stock constitutes an equitable assignment, for the reason that the certificate is the muniment or evidence of title, and its delivery is symbolical delivery of the stock. Angelí & Ames on Corp., § 564. The right of the bank against the creditors of' the testator is the same for purposes of defence as it would have been against him in his lifetime, and the city council is entitled, as against the claims of these creditors, to any defence which the bank might have. The creditors have no interest in the stock which Joseph Whaley had not when he died. Joseph Whaley unquestionably had assigned the certificates, and that constituted an equitable assignment of the stock. The bank could have compelled the city to transfer the stock. The city has only done what the court would have ordered to be done, and has in nowise damaged the creditors, and is not amenable to them for its conduct in the matter. With regard to the regulations on the subject of transfer, it is unnecessaiy to add anything to the conclusions stated by the Circuit judge and those reached by the court in Bank v. Cox, supra.

This case involves only the question as to the rights of the creditors. The moment the equitable assignment has been ascertained their rights are concluded. The legal owner would have been estopped, and they have no rights which he had not at the time of his death, or when, in his lifetime, liens were fixed upon the specific property. An equitable assignment is good between the parties; and, all having notice, the formal transfer in the mode prescribed by the charter or the regulations is binding on all parties. Sabin v. Bank of Woodstock, 21 Vt. 353, cited in 2 Lead. Cas. in Eq. 1665. The case of Merchants’ Bank of Canada v. Livingston, recently decided in the New York Court of Appeals, and relied on by the appellants, is not in conflict with the principles in Bank v. Cox, supra, or in McNeill v. Bank, 46 N. Y. 325. If the attorney in that case had acted upon his power, as the real owner, the stock would have been bound; but he, in fact, claimed not to be the owner of the stock, and failed to show authority to borrow money on it for the real owner. There is no evidence that William Whaley gave notice to the bank that he was not the real owner of the stock, and the blank endorsement is direct evidence that he is the real owner by virtue of an equitable assignment. Besides, Bank v. Cox, supra, is conclusive on the point, and we feel no disposition to question its authority. The language of the Circuit judge that “ Joseph Whaley was divested * * * by endorsing the same [the scrip] to H. G. Loper,” Ac., refers not to the actual transaction, but to the legal effect of the endorsement. When the transfer is made by virtue of a blank power, it must be treated in law as an assignment from the one who was the legal owner to the person who becomes the legal owner by transfer on the books of the corporation. There is, therefore, no material discrepancy between the facts and the conclusions of law.

It is contended by the appellants that the city council is confined to the issues made in the pleadings, and that the defence now relied on is not alleged in the answer. There is nothing in the objection. The issue on which the second trial was had, with the consent of all parties, was framed by the order of this, court remanding the case for trial upon the point stated. In the answer, however, there is a denial of Section 9 of the complaint, which constitutes a general denial of the title to the stock, and under this the defence could have' been made.

Other exceptions taken were not pressed in the argument, and it seems unnecessary to state further the reasons upon which the rulings of the Circuit judge are sustained.

The judgment is affirmed. Motion refused.

Judgment affirmed.

Willard, C. J., and McIver, A. J., concurred.