48 Barb. 637 | N.Y. Sup. Ct. | 1867
The action was brought to compel the defendant, The American Express Company, to transfer to the plaintiff 107 shares of the capital stock of The Tompkins County Bank, and 73 shares of the capital stock of the Bank of Syracuse ; and account for and pay over to the plaintiffs the dividends which it bad received thereon ; to enjoin it from transferring the stock to any other person; and to have the same declared and adjudged to be the property of the plaintiffs. Also to restrain the other defendants from transferring the said shares of the capital stock to their respective banks, or allowing the same to be transferred on their books, to any person other than the plaintiffs.
The' issues joined in the action were tried before his honor Justice Morgan, at an adjourned special term, in June, 1865, and his findings of fact, which were supported by the evidence, are, in substance, as follows:
Daniel Kellogg, late of the town of Skneneateles, died in May, 1836, leaving a'last will and testament, and appointing George F. Leitch, John Kellogg and David A. Comstock, executors. He left a large personal estate. The will was duly proved, and all of the executors qualified and entered upon their duties as such.
In 1848, Augustus L. Converse, as administrator of Mary Ann Converse, who was one of the daughters of Daniel Kellogg, and one of the residuary legatees, commenced an action against all of the executors, to compel the payment of her residuary interest in the estate ; and in May, 1850, all of the executors having become insolvent, upon proceedings taken in that action, Elias W. Leavenworth was appointed receiver of the property, both real and personal, of said estate, and the executors were ordered by the court to convey and assign to the receiver, under the direction of a referee appointed by the court, all of said estate then in their hands.
On the 10th day of October, 1850, the executors, in pursuance of the order of the court, by an instrument under their hands and seals and under the direction of the referee, conveyed and assigned to the receiver all the said estate, both real and personal, “ excepting and reserving from this assignmént a certain fund of $25,000, consisting of shares of capital stock in Tompkins County Bank, amounting to $12,700, and shares of the capital stock in the Bank of Syracuse, amounting to $7300, and shares in the capital stock in the Onondaga County Bank, amounting to $5000, making the said sum of $25,000, with the certificates and .vouchers pertaining thereto, which has been set apart and designated and appropriated by the said parties of the first part as such executors and trustees, as for the sum of $25,000 given to them in and by
At the time of this conveyance, the estate of Daniel Kellogg owned 127 shares of the capital stock of the Tompkins County Bank, the par value of which was $100 per share ; 99 shares of the stock of the Bank of Syracuse, of the like par value; and 105 shares of the stock of the Onondaga county Bank, of the like par value.
George F. Leitch and David A. Comstock died in the year 1855, and John Kellogg continued the sole surviving executor ; but previous to their death, an arrangement was made between the executors and the other parties to the suit which Converse had commenced against them ; in pursuance of which, Leavenworth, the receiver, reconveyed to them as such executors all the property remaining unadministered by him as such receiver ; and up to, and until 1858, the said shares of bank stock which had been so set apart as and for the said fund of $25,000 remained in the hands of the executors during their joint lives ; and in the hands of John Kellogg as such surviving trustee, and stood in their names as executors, on the books of the said banks ; and for a portion of the intermediate time, the dividends thereon were paid over to Catharine K. Leitch, towards the income of the said fund of $25,000.
On the 2d day of January, 1858, John Kellogg, by an instrument in writing upon the transfer book of the Tompkins County Bank, signed by him as executor of said Daniel Kellogg, deceased, assigned the said 127 shares directly to his wife, Paulina W. Kellogg; and on the second day of August, 1858, by like instruments in writing upon the transfer books of the said Bank of Syracuse, and the said Onondaga County Bank, assigned to said Paulina W. Kellogg the said 99 and 105 shares of the said banks, respectively ; and he received the scrip therefor, as well as the scrip for the 127 shares, in
Soon after the transfer of said stocks to Paulina W. Kellogg, she, at the request of John Kellogg, signed blank powers of attorney, in the usual form, for the- transfer of stocks in corporate companies, and delivered them to him ; and she never, until that time, knew that the stock had been assigned to her. She never had the possession of any of the scrip. J ohn Kellogg received the dividends upon it, the same after the assignment to her, as before, and the assignment was made to her without any consideration therefor.
In November, 1861, Catharine K. Leitch and the plaintiffs in the suit commenced an action against John Kellogg and Paulina Kellogg for the purpose of recovering the said legacy and the unpaid interest thereon ; and duly impleaded them in the action; and, among other things, claimed in their complaint, that the 127 shares of the capital stock of the Tompkins County Bank were set apart for the benefit of the said Catharine and her children, as a portion of the legacy of $25,000 so bequeathed to said executors upon trust, as aforesaid, and was treated by. the said Leitch, in his.lifetime, and by the said J ohn Kellogg, as a trust fund .in his hands for the benefit of the said Catharine and her children until he caused the same to be transferred to Paulina W. Kellogg, as aforesaid. ■ And it further claimed that such transfer was without consideration,.and was void. The defendants in that action answered the complaint, and afterwards Catharine K. Leitch died, on the 3d day of October 1862, intestate, leaving the plaintiffs in this action her only surviving .children and heirs at law.
After the death of Catherine K. Leitch, that action was continued in the name of her administrators, and the present plaintiffs, as.plaintiffs therein; and on the 30th day of Ko
While the action was pending, upon the original complaint, and on the 30th day of May, 1862, John Kellogg applied to the American express Company for a loan of $11,000 upon his own note ; and proposed to secure it with 124 shares of the capital stock of the Bank of Syracuse. He obtained the money—executed his note to the Express company for the amount, and caused the stock to be transferred, by delivering to the express company scrips of the stock of said bank, standing in the name of Paulina W. Kellogg, one of which scrips was in the following words : “ $7300. This certifies that Mrs. Paulina W. Kellogg is entitled to seventy-three shares in the capital stock of the Bank of Syracuse, transferrible, on the books of the bank, only by herself, or her attorney duly constituted ; one hundred dollars on "each share of which is hereby acknowledged to have been received. Bank of Syracuse, August 2d, 1858.
73 shares. (Signed,) O. Ballard, Cashier.” ■
Attached to which scrip,, was a power of attorney, signed by Paulina W. Kellogg, in blank, but in the usual form,
■ without acknowledgment by her; but the stock has never been transferred to the American Express Company on the books of the bank.
On the 25th of March, 1864, John Kellogg applied to the American Express Company for another loan of $10,000, and obtained it upon his own note secured by a transfer of 107
Afterwards, the issue in that action was tried, and on the 12th day of September, 1864, judgment rendered, by which it was ordered and adjudged, that by the setting apart of said stock hy the executors, the said 127 shares of the capital stock of the Tompkins County Bank, and the said 73 shares of the, capital stock of the Bank of Syracuse, were held hy John Kellogg from the time of such setting apart until the death of said Catherine Leitch, in trust, to pay the annual income thereof to her ; and that upon her death, the plaintiffs in this action, her children, became the owners, and vested with the absolute title to said stock ; and that the same from that time had continued to be, and, still were, vested in these plaintiffs, together with all unpaid dividends thereon ¡ and that the pretended sale and transfer of. the stock to the said Paulina was void, and vested in her no title to the same.
The express company, at the time of making such loans to John Kellogg, and receiving the assignments of the stock, had no actual knowledge of the action which was pending between these plaintiffs and their mother against John and Paulina W. Kellogg, or of any claim of the plaintiffs in this action to the stocks in question ; or that John Kellogg was an executor and trustee under the will of David Kellogg. And no injunction was obtained in that action restraining the transfer of the stock during the pendency thereof; and no receiver was applied for.
The judge before whom the action was tried, at special term, without a jury, ordered a judgment for the plaintiffs, according to the prayer of the complaint.
It is perfectly clear, that by the clause in the will of David Kellogg,'which is hereinbefore recited, he created a trust of a fund of $25,000 out of his estate, which he conveyed thereby to his executors, to the income of which Mrs. Leitch was entitled during her life, and that at her death the principal of the fund vested in her children her surviving; but no particular property was designated by him as constituting such fund, and the same remained with, and constituted a part of the whole of the estate of the deceased in the hands of his executors 5 and there can be no doubt, upon sound principles, that while so situated, a transfer by the executors of the specific property constituting the estate, would convey a good-title to the purchasér, unless he was a party to a fraud to be perpetrated by such transfer.
When the executors, in October, 1851, in pursuance of the order of the Supreme Court, executed an assignment (under their hands and seals, and under the direction of a referee,) to the receiver Leavenworth, of all the residue of said estate, except the fund for the payment of the $25,000 and interest thereon; and excepted thereout, and set apart in express terms the 73 shares of stock in the Bank of Syracuse, the 127 shares of stock in the Tompkins County Bank, and the 50 shares of stock of the Onondaga County Bank, it became thereby separated from the residue of the stock of the deceased, and the relations of the executors became changed, so
There is no doubt, under the facts of this cáse, that Mrs. Leiteh was entitled to the vjhole net income of the stocks during her life ; that the plaintiffs were entitled to the stocks at her death ; and if, at any time, after the trust was created, they had become worthless from the failure of the banks, the loss must have fallen upon Mrs. Leiteh and the plaintiffs, provided there was no fraud, or want of good faith, on the part of the trustees.
The plaintiffs, then, had the equitable title to the stocks in question, which vested in them at the death of their mother ; and they had a right to require of the surviving executor a transfer of the scrip to them, and they were entitled, after the death of their mother, as her next of kin, to an accounting by the executor for the income which he had received from the stocks, and any income not paid over which he had received on the trust fund of $25,000, before it was merged in the stocks. And to accomplish these purposes, the action was originally brought by their mother and the plaintiffs, during her life, against J ohn Kellogg and his wife;
The questions, therefore, are,' could the express company, while that action was pending, acquire a title, either legal or equitable, to the stock, or any part of it, as against the plaintiffs, though it had no direct notice of the trial, or claim of the plaintiffs, and though it paid the full value of it ? And if it could, then did it acquire a title to it which was superior to that of the plaintiffs ?
Under our statutes, where the title to real estate is concerned, the pendency of an action therefor is not notice to a stranger until the notice of Us pendens is actually filed ; and if in such case he has no actual notice, he may, in good faith, and for a good consideration, acquire the legal title, and maintain it against a party who claims the equitable title.
1 The rule, however, which applies to personal estate, and ' which at common law applies to all estates, is general, that lis pendens is a general notice of an equity to all the world,^ {Bouvier’s Law Die. title Lis pendens ; Murray v. Ballou, 1 John. Ch. 577; and Murray v. Lylburn, 2 id. 444 ;)j where it is said “ there is no principle better established, nor one founded on more indispensable necessity, than that the purchase of the subject matter in controversy pendente lite, does not vary the rights of the parties in that suit, who are not to receive any prejudice from the alienation. If the cestui que trust be entitled, as between him and his trustee, to take the securities for the land, at his election, it ought not to be in the power of the trustee to defeat that election by selling the securities. The litigating parties are not to have their right affected by any alienation during the pendency of the suit.” (And see also Hayden v. Bucklin, 9 Paige, 514, 515 ; and cases cited in Bouvier’s Law Die. supra.)
It is, therefore clear, that the express company could not acquire the title, legal or equitable, to the' Tompkins County Bank stock against these plaintiffs ; because, not only was the
It is not so perfectly clear in regard to the seventy-three shares in the Bank of Syracuse) for at the time of the assignment of it to the express company, although the action was pending, the complaint did not specifically claim it as equitably belonging to the plaintiffs. But I have come to. the conclusion that the action, as it then stood, was notice to the express company as to any thing which was part of the trust between the plaintiffs and John Kellogg, on account of which the action was commenced, whether specifically stated or not, provided it could be brought into that action as constituting part of the trust. And yet it must be conceded that there is no lis pendens, so as to charge strangers, until after the filing of the hill or complaint, as well as the service of the subpoena or summons, upon the defendant. (Anonymous Oase, 1 fern. 318. Supplement to Vesey, Jr. vol. 1, 284. Hayden v. Bucklin, 9 Paige, 514, 515. Bouvier’s Law Lie. title Lis pendens, 2.)
I have said that the original complaint in that action did not specifically claim the shares of stock in the Bank of Syracuse ; but it did claim, among other things, that in or about the year 1849, John Kellogg received from Leitch, his co-executor, 300 shares of the capital stock of the Bank of Syracuse ; 100 shares of the Onondaga County Bank ; 127 shares of the Tompkins County Bank ; together with other property belonging to the estate of Daniel Kellogg. That afterwards he had transferred the same to his wife, without consideration, and for the purpose of defrauding the plaintiffs. The complaint also averred that the plaintiffs were not informed whether the whole of said legacy of $25,000 was ever set apart and invested by the executors as directed by the will;
As between the plaintiffs in that suit and J ohn Kellogg and his wife, it was not necessary to insert in the supplemental complaint the allegations that the Syracuse Bank stock was also a trust, as part of the fund of $25,000. In the original complaint, enough had been alleged to require J ohn Kellogg and his wife to account as to all things concerning the original legacy of $25,000, and to enable the plaintiffs to follow it through any mutations or changes which had occurred, unless it had become the property of a bona fide owner ; and if upon the accounting in that action it appeared that the seventy-three shares had become a trust fund, then, without any amendment of the original complaint, (which contained a general prayer for relief,) the court could have given the same judgment that it did, to wit, that it belonged in equity to the plaintiffs, and was vested in them at the death of their mother.
It was- not, therefore, a collateral matter, but was within the original issue, and was really as much a part of the subject in issue then, as it was afterwards under the supplemental complaint. And the farthest that any case has gone
The express company was also bound to take notice that the action was brought to remove John Kellogg as trustee, and for an accounting, and that he could not, therefore, while the action was pending, dispose of the trust fund, and was bound to inquire into the equities of himself and wife. And there is the more reason why it should be so, as the loans, to secure which the notes were given, and the stock assigned, were made to him. (Murray v. Ballou, and Murray v. Lylburn, supra.)
But independent of the action which was pending when the stocks were transferred to the American Express Company, did it acquire any title to them, either legal or equitable, superior to that of the plaintiffs ? I have already shown that they became a part of the trust fund long before they were so transferred. And from that time the plaintiffs had an equitable interest in them, which became vested in them as owners at the death of their mother ; and they were then entitled to a transfer to them of the legal title, not only as against John Kellogg, but also as against his wife ; and the court, in the action between them, so adjudged. Still, if it be the law that that action was not notice to the express company, then the questions as to the rights acquired from John Kellogg by his wife, and of the express company, derived from her, must be determined without resort to the judgment rendered in that action.
I need not spend time to prove, although Mrs. Kellogg, in form, took the legal title to the stock, in virtue of the transfer to her by her husband, that her title was fraudulent; and that as between her and the plaintiffs, her claim to the stock, both at law and in equity, was void. If, however, she had the legal title, she might transfer one to a purchaser without
The reason why a husband cannot convey a legal titlé directly to his wife, is not because the subject matter of the contract belongs to one of them, but because their relation to each other is such that they cannot make a legal contract with each other ; and when equity is invoked to give to one or the other of them relief, it is confined to cases where it is called upon to protect the prior interests of the one or the other. And even equity would not interfere to protect a married woman, in a contract with her husband, where she had no prior interest to protect, and where she had paid no consideration. The policy of the law is to prevent legal bargains by married women with any person whatsoever, and especially with their husbands, except so far as they have been authorized to contract, by statute.
Mrs. Kellogg took, then, at most, so far as the defendant can claim, a mere equity. As such, it was subordinate to the equity of the plaintiffs. Theirs was a prior equity, and founded in justice. Hers was subsequent in point of time, acquired after theirs had accrued, and was fraudulent; and on the part of her husband, it was iniquitous. In truth, she
But the express company was bound to know that Paulina W. Kellogg was a married woman; and should have made the inquiry, if it did not know it; and was bound to know that she had no right to sell, assign, or transfer stocks unless they were part of her separate estate, acquired in conformity to the statutes which allow a married woman to dispose of her separate property. The defendant was therefore bound to inquire how she became possessed of the stocks, and was chargeable with notice of how that was; and was chargeable with knowledge that being such married woman, and having derived her title to the stocks from her husband, that she had no legal title to them ; and it was the further duty of the company to inquire what the title of her husband was ; and it appearing that the transfer of the stock from her was delivered by her husband, and as collateral security for bis own debts, the express company cannot complain that the security which it so obtained should yield to the prior and superior equity of the plaintiffs.
Again ; the express company did not, in form, even, acquire a legal title to the stocks ; the transfer was not made on the books of the banks, which was necessary to pass a legal title. (Laws of 1836, p. 511, § 27, and Laws of 1838, p. 249, § 19.)
It therefore, at all events, took but an equitable title to the stocks ; and if so, it cannot be disputed that that equitable title must give way to the prior and superior equity of the plaintiffs.
1st. Then the pendency of the action against Kellogg and his wife, was notice to the express company, and the judgment therein made void its purchase of the stock of the Bank
2d. Independent of that action, the express company acquired no title to the stocks, as against the plaintiffs.
The judgment of the court below should be affirmed, with costs.
Morgan, Mullin and Foster, Justices.]