140 Ala. 342 | Ala. | 1903
It seems to be well adjudicated, that a trust in personal property may be declared and proven by parol.- — See 27 Am. & Eng. Encyc. Law, (1st ed.) p. 54, where authorities are cited in note. We do not understand that, the appellants controvert this proposition. The declaration of T. H. Amberson at the time he paid and subscribed for the stock in the defendant bank were admissible in evidence to show the creation of the trust in the stock, and for whom the trust was created; the certificate having been issued to “T. H. Amberson, trustee,” omitting the name of the beneficiary. So, too, were his subsequent declarations while in the possession of the stock, to the effect, that he had subscribed and paid for the stock for his minor-son, Ernest, and that it belonged to his said son, etc.—9 Am. & Eng. Ency. Law (2d ed.) p. 12 and note; Wheeler v. Glasgow, 97 Ala. 700; Gillespie, Admr. v. Burleson, 28 Ala. 551.
The word “trustee” written in the face of the certificate after the name of the person to whom such certificate was issued, was sufficient to put a purchaser of the stock on notice as to how the stock was held. In Cook on Stock and Stockholders -and Corp. Law, (2d ed.) § 325, p. 359, the rule is stated as follows: “A vendee or pledgee of stock, directly from a trustee, is or is not
Tbe payment of tbe money by T. H. Amberson, and taking the stock in his name as trustee, was a complete declaration of tbe trust in favor of the complainant, Ernest Amberson, and which a court of equity will enforce.—Minor v. Rogers, 16 Am. Rep. 69; Walker, Guardian v. Crews, 73 Ala. 412; Sayre v. Weil, supra; Shaw v. Spencer, supra; Gerrish v. N. B. Ins. for Saving, 35 Am. Rep. 365; Martin v. Funk, 31 Am. Rep. 446; Railroad v. Durant, 94 U. S. 576.
It is admitted by tbe defendant Johnson, appellant here, that be received tbe stock from T. H. Amberson to be applied as a credit on a pre-existing indebtedness from said Amberson to him, Johnson. This was clearly a misappropriation by Amberson of the trust property, and Johnson cannot under tbe circumstances be considered a bona fide purchaser for value without notice. Shaw v. Spencer, supra.
Where one action is legal and the other equitable, the rule to stay proceedings in the latter until the costs in the former are paid, will not be applied.—23 Am. & Eng. Encyc. Law, (1st ed.) p. 528. The court properly denied this motion.
We find no error in the decree, and the decree will, therefore, be affirmed.