164 Ind. 499 | Ind. | 1905
Action by appellee, Sophia C. Van Gorder, to enjoin the sheriff of Grant county, Indiana, a co-appellant herein, from selling at sheriff’s sale on execution twelve shares of the capital stock of the Marion Ice & Cold Storage Co., an incorporated concern domiciled and doing business at the city of Marion, in said county. This corporation appears to have been organized under the statute of this State relating to the incorporation of manufacturing and mining companies. Appellants answered the complaint
The court, in its special finding, found substantially the
Upon these facts the court stated its conclusions of law to the effect that appellee on February 25, 1902, was the owner in her own right of the shares of stock in controversy, and that the levy thereon by the sheriff under the execution was wrongful, and that the appellants, and each of them, ought to be perpetually enjoined from selling said property.
Exceptions to the court’s conclusions were duly reserved, and it is assigned in this appeal that the court erred in its conclusions of law. It is argued by appellants’ counsel that under the facts set out in the special finding the conclusions of law can not be justified. Section 5059 Burns
1. The special finding discloses that whatever rights appellee has acquired to the shares of stock in controversy are by virtue of the mere delivery to* her of the stock certificate. The stock has never Peen transferred to her on the books of the company, but remains and stands registered therein in the name of and as the property of her husband Charles A. Yan Gorder. The special finding does not show that the corporation had adopted any by-law prescribing the manner in which stockholders should transfer their stock. It appears, however, by the record, that appellants, on the trial, introduced in evidence a by-law of the company providing' as follows: “A registered stock-book shall be kept by the secretary of the corporation, and no transfer of stock shall be valid except on such book by a stockholder in .person or by power of attorney executed for that purpose.”
It is insisted by counsel for appellants that the court in its special finding, under the evidence, should have found in respect to the existence of this by-law. As the finding, however, is silent in regard to the by-law in dispute, therefore, in reviewing the questions presented by the conclusions of law, we can not consider the effect of this by-law upon the transfer of the stock in controversy. Under the facts alleged in the complaint, and as found by the court, the title which appellee acquired to the stock in controversy, as between herself and her husband, the legal owner, was merely an equitable one, or, in other words, she had the right as against him to have his legal title or interest in the stock transferred to her, subject or subordinate, however, to any existing paramount rights of the corporation and third paríígs. Bruce v. Smith (1873), 44 Ind. 1; Cole
2. Section 735 Burns 1901, §723 E. S. 1881, provides: “Shares of stock in any corporation or company may be levied upon and sold in the county where the office and books showing the shares of stock and stockholders of the corporation or company are kept; and the sheriff shall transfer the stock, subject to the rights of the corporation or company. The sheriff shall have access to the books of any corporation or company in his county, for the purpose of making the levy; and if refused access, the court shall enforce the right. The shares of stock subject to be levied upon shall be bound by the execution from the time of the levy; and when such le^y is made, the sheriff shall leave the notice thereof with the officer of the company, and such levy shall constitute a lien upon the stock from the time of such levy.”
It will be observed that §5059, supra, declares that the stock of the company shall be deemed to be personal estate. The evident purpose of §735, supra, is to place shares of stock of a corporation, owned by a judgment debtor, so far, at least, as the right to levy thereon is concerned, on a-parity with other personal property owned by him. It is “the shares of stock in any corporation or company” upon which this statute authorizes a levy, and the sheriff is empowered thereunder to transfer on the books of the corporation to
3. The levy is not made by seizing the stock certificate issued by the corporation to the judgment debtor, but it is made upon his shares of stock as registered in the books of the company, access to these books is accorded by the statute to the sheriff for the purpose of making the levy. The statute in question evidently contemplates that the officer in making the levy shall be governed by the books of the corporation; and whatever stock they disclose as owned by or belonging to the judgment debtor may, as previously said, be levied upon, subject to any existing paramount rights of the corporation or third parties. In respect to the relative rights of an unregistered transferee of stock, and execution or attaching creditors of the transferrer, see Ilelliwell, Stock and Stockholders, §361; 2 Cook, Corporations (5th ed.), §§486, 487.
4. As to whether appellants at the time of the levy in question had notice of the transfer of the stock certificate to appellee, the special finding is silent. In the event of the consummation of the threatened sale upon execution of the shares of stock in controversy, the purchaser thereof will acquire whatever legal title Charles A. Van Gorder, the judgment debtor, has therein, subject of course to any valid existing right or title of appellee or others thereto, of which right or title such purchaser at the time of the sale may have actual or constructive notice.
5. It follows that,' under the facts exhibited by the special finding, the levy in question is not illegal or wrongful.
6. Again, upon another view of the question, there are no facts in the special finding going to show that the stock or property in question is of any peculiar value or use to appellee; neither does it appear that the threatened sale by the sheriff will cause her to suffer any great or irreparable damage. It may truly be said that there are no facts
We are constrained to hold that, upon either view under the facts, the court erred in its conclusions of law, for which error the judgment is reversed and the cause remanded, with instructions to the lower court to restate its conclusions of law to the effect that the plaintiff (appellee herein) take nothing by this action.