Oxford Turnpike Co. v. Bunnel

6 Conn. 552

• Court: Supreme Court of Connecticut
• Decided: November 15, 1827
• Status: Published

Opinion

Daggett, J.

The question of fact raised on the trialof the issue to the jury at the circuit, was, by the court, submitted to the jury, and by the jury found against the defendant. Of that part of the charge the defendant cannot and does not complain; but he now urges in support of his motion, that the charge of the court as to the question of law, was incorrect. The court instructed the jury, that by the facts admitted, Asahel Bacon's right to the money in question was superior to that of the Leavitts. Whether this instruction was right, depends solely on the question whether Bacon's attachment gave him a preference to the power of attorney given by Charles Bacon to the Leavitts.

The parties. by their counsel, respectively, claim a superior equity. I can discover no ground in the facts detailed in the motion, for the discussion of such a question. It is a mere question of law, which of the two contending parties has a legal right to the shares of the turnpike stock, attached by A. Bacon, on the 20th of October, and on the same day, and at an earlier hour of the day, attempted to be transferred to the Leavitts, by the power of attorney of Charles Bacon.

It was in the power of the legislature, by the act incorporating The Oxford Turnpike Company, to prescribe the mode of transferring its stock. This the legislature did not do, but authorized the company "to establish such by-laws as should appear necessary or expedient for the government of the corporation, or the regulation of their concerns, not contrary to law."

The company, by virtue of the authority conferred on them, by the charter, passed a by-law, that no transfer of any share in The Oxford Turnpike Company shall be good and valid, until received for record, by the clerk, who shall enter on said transfer the time he receives the same, which shall bear date accordingly.

I am satisfied, that the dedsions in the case of The Marlborough Manufacturing Company v Smith, 2 Conn. Rep. 579. and Northrop v. The Newtown and Bridgeport Turnpike Company, 3 Conn. Rep. 544. must govern the case now under consideration.

In these cases, and especially in the last cited, the judgment proceeded on the precise point now raised.

The marginal note, which contains a condensed view of the case, is in these words: "Where the act incorporating a turnpike company, provided, that the shares of stock should be transferable only on the books of the company, in such manner as the company should, by their by-laws direct: and a bylaw of the company provided, that the board of directors should prescribe the form of the transfer, to be registered, by the clerk, in the books of the company, and that no transfer should be valid, unless so made and registered it was held, that a deed of assignment, in the form prescribed, was of no avail to convey a title until actually registered in the books." The registry operates, not merely to perfect a conveyance previously begun, or to give notice of a conveyance previously perfected, but is itself the originating act in the change of title." "An entry of the clerk on the deed of assignment, received for record, is not equivalent to a registry." Neither of these cases furnish as decisive evidence against the validity of the transfer, as is furnished by the by-law in question. Here, it is expressly declared, that the transfer shall bear date when received by the clerk. Now, the clerk did not receive it till the 8th of November; and on the 20th of October previous, Asahel Bacon obtained his lien by the attachment; and the shares were sold on the execution afterwards obtained, according to law.

To sustain the objections urged here against Bacon's title, the Court must not only reverse the decisions mentioned, but must declare a transfer of stock good, in opposition to both the spirit and letter of the by-law.

I am of opinion, therefore, that a new trial must be refused.

The other judges were of the same opinion, except Brainard, J. who was absent.

New trial not to be granted.