190 So. 401 | La. | 1939
This is an appeal from a judgment declaring 156 shares of the stock of George M. Cox, Incorporated to be community property.
Mrs. T.A. Goertz Cox obtained a judgment of divorce against George M. COX, Cox v. Cox,
The defendant by reconventional demand in her answer asked to be declared the owner of the 156 shares of stock. She contends that the plaintiff gave her the stock. In other words, she contends that the stock was a donation inter vivos.
Upon trial the lower court rendered judgment declaring the stock to be community property. From the judgment the defendant has appealed and the plaintiff has answered the appeal asking that the judgment be amended.
From an examination of the record we find that the plaintiff purchased 157 shares of stock, which included the stock disputed herein, from his first wife, Mrs. Cassie J. Cox, on January 18, 1932, represented by certificates Nos. 9 and 14, with a power of attorney for delivery to the plaintiff, receipt and delivery of the stock with endorsement *273 being acknowledged in the act by the plaintiff. These certificates were not produced at the trial. Both the plaintiff and defendant deny having possession of these certificates. The plaintiff testifies to the effect that the defendant took these certificates with other securities and documents when she left the matrimonial domicile. The defendant's testimony is to the effect that they were left in the plaintiff's office. The ownership of the 157 shares of stock as of date January 18, 1932, is positive and there seems to be no contention otherwise. It is not disputed that the plaintiff bought the stock on that date from his first wife in settlement of the community. The evidence shows that on that date the plaintiff and the defendant were man and wife and that the funds used to buy the stock was borrowed from the corporation. There is no evidence showing that the stock was purchased with the separate funds of the plaintiff. Under the circumstances the stock was at that time the property of the community between plaintiff and defendant. From an examination of the evidence it does not appear that this stock was ever transferred from George M. Cox by any satisfactory proof. The minutes of the corporation of December 23, 1932, show that the corporation agreed to deliver 156 shares of stock to the defendant accepting in payment thereof the defendant's promissory note calling for the sum of $125,000, payable to the order of the corporation three years after date. The note was offered in evidence and certificate No. 19 calling for 156 shares of stock in the name of the defendant was also offered in evidence. *274 The minutes of the corporation show that this acquisition by the defendant was ratified and confirmed. These minutes have been in the possession of the defendant since she left the matrimonial domicile. These minutes are not signed by the plaintiff, who was at that time president of the corporation. There is a letter in the record written by an attorney for the defendant of date January 27, 1934 to the plaintiff's attorney calling attention to the fact that the defendant had bought a share of stock with her individual money and that the defendant had purchased 156 shares of stock from the corporation giving her note for $125,000 in payment thereof which note it was claimed was retired by the earnings from the stock. In the proceeding for alimony Mrs. Cox in applying for a subpoena duces tecum stated in a petition sworn to by her that the stocks and bonds of the corporation were held and owned by the plaintiff personally as head of the community. An attorney who had previously represented the plaintiff, whose connection had been severed because of some misunderstanding, testified that he had prepared certificate No. 19 calling for 156 shares of stock at the direction of the plaintiff and had delivered it to the defendant. The testimony of Mrs. Cox corroborates this testimony. However, the secretary of this attorney states that she vaguely remembers some talk about one share of stock. A former employee of the corporation testified that he heard discussion concerning the delivery of some stock to Mrs. Cox, but knows nothing of a sale or delivery to her. Another former employee of the corporation *275 testified that he heard discussions among the parties relative to the delivery of stock in the corporation. The plaintiff denies having transferred the stock to the defendant, but claims that he signed two certificates in blank for entirely different purposes.
From an analysis of the testimony, it is certain that George M. Cox acquired the stock in controversy on January 18, 1932, and that at that time it was community property. The evidence as to the defendant's ownership of certificate No. 19 calling for 156 shares of stock is extremely conflicting. The minutes of the corporation, the defendant's note for $125,000 and the letter of her attorney are to the effect that the defendant acquired the stock from the corporation. The defendant's statement in her sworn pleadings applying for a subpoena duces tecum are to the effect that the defendant does not own the stock. The testimony, which is also very conflicting, is to the effect that the defendant acquired the stock by donation inter vivos from her husband. Furthermore, there is no evidence to show any transfer of the 157 shares of the stock or any part thereof except the endorsement for the delivery of the stock to George M. Cox.
From the evidence we have concluded that George M. Cox acquired the disputed stock from his first wife during the community between himself and the defendant and that the stock is community property. We have also concluded that George M. Cox as head of the community has never parted with the stock. Moreover, had the corporation acquired the stock from George M. Cox and the *276 defendant during the community had acquired it from the corporation giving her promissory note for the purchase price, it would in that event have been community property.
Having concluded that George M. Cox as head of the community has never parted with the ownership of or transferred the stock since he acquired it from Cassie J. Cox, certificate No. 19 issued in the name of the defendant calling for 156 shares of the capital stock of the corporation was illegally issued. While the judgment of the lower court decreed the stock to be the property of the community between the plaintiff and the defendant, it did not decree certificate No. 19 to be null and of no effect, being illegally issued. Therefore, it is necessary to amend the judgment in that respect. The judgment of the lower court did not provide for the dismissal of the defendant's reconventional demand and should be amended in that respect.
For the reasons assigned it is ordered, adjudged and decreed that certificate No. 19 purporting to have issued on December 24, 1932, in the name of T.A. Goertz Cox calling for 156 shares of the capital stock of George M. Cox, Inc., be and the same is hereby declared to have been illegally issued and of no legal force or effect. It is further ordered, adjudged and decreed that the defendant's reconventional demand, wherein she seeks to be declared the owner of certificate No. 19, be dismissed. As thus amended, the judgment is affirmed at appellant's cost.
LAND and FOURNET, JJ., absent. *277