87 P. 402 | Cal. | 1906
This action was prosecuted to determine the title to certain stock in the San Joaquin Valley Building and Loan Association, and for the delivery up and cancellation of the certificate representing the same, for an injunction restraining the payment of money on account of said certificates, and for the issuance to plaintiff of certificates of said stock. Judgment was for plaintiff, and the appeal is ■ from the judgment.
The first error assigned is that the court refused the defendants’ demand for a jury. Whatever view may he taken of the case as to other matters, it is an equity case, and there was therefore no error in denying the defendants’ demand for a jury: Code Civ. Proc., sec. 592; Meek v. De La Tour, 2 Cal. App. 261, 83 Pac. 300; Ashton v. Heggerty, 130 Cal. 517, 62 Pac. 934. The complaint alleges that Deborah H. Lee died intestate March 12, 1903, and at that time she was the owner and entitled to forty shares of the capital stock of the San Joaquin Valley Building and Loan Association, in a certificate numbered 465, and that one Gennis H. Learned, upon the death of said Deborah H. Lee, wrongfully and unlawfully took possession of said certificate of stock, had the same canceled and a new certificate issued to her in her own name for thirty-nine shares and received $100 in money for the other shares. That said Gennis H. Learned died testate, and the said certificate of stock is now held by D. A. Learned, the executor of the last will of said Gennis H. Learned. Alleges demand made, and the value of the property to be $4,000. The prayer is that the certificate of stock No. 559 be delivered up by said defendant, that it be canceled and the San Joaquin Valley Building and Loán Association issue to plaintiff certificates in due form evidencing the ownership of plaintiff to said thirty-nine shares, and also the return of the $100. The San Joaquin Valley Building and Loan Association answered by general denial. D. A. Learned answered by denying specifically, admitting the death of Deborah H. Lee and Gennis H. Learned and the proceedings taken to settle their respective estates, and, further answering, alleges that on October 17, 1902, Deborah H. Lee duly assigned by
This finding is based upon the testimony of Arthur M. Noble, of whom she purchased the forty shares of the capital stock of the San Joaquin Valley Building and Loan Association. Mrs. Deborah H. Lee was sick, had about $1,600 which she wanted placed where she could have the income from it and use any part of the principal in case she needed it at any time. In negotiating the purchase of said shares of stock with the witness A. M. Noble, who was the secretary of the San Joaquin Valley Building and Loan Association, she informed him that this was the only money she had, and that she did not want to put it out of her control. This certificate of stock No. 465, with others, was issued to her with the assurance to her by Mr. Noble that she could retain control of them and draw money on them. The certificates were then issued in the name of Deborah IT. Lee, and given to her. She assigned them to different persons, assigning No. 465 to Gennis H. Learned. They were, then by Mrs. Lee returned to Mr. Noble, who testified in relation thereto as follows: “I left them [certificates] at the house with her. Two or three days Subsequent to that she sent for me and wanted'me to take
It thus clearly appears that Deborah H. Lee did not and never intended to part with control of her title to said stock while she lived. On March 12, 1903, she died without having revoked said assignments, or any of them. The certificates were then in the safe in the possession of Noble, who afterward delivered certificate No. 465 to Gennis H. Learned, she being the one named therein as assignee. The finding is warranted by the evidence: Noble v. Garden, 146 Cal. 225, 2 Ann. Cas. 1001, 79 Pac. 883. This, then, disposes of the issue that Noble held the certificate as trustee, against the contention of appellant. A similar case to the one before us, and involving the same question as to delivery and title of others of these identical certificates of stock, was well considered and decided in Noble v. Garden, 146 Cal. 225, 2 Ann. Cas. 1001, 79 Pac. 883. The court there held under the same state of facts that Deborah H. Lee retained control and dominion of these certificates ; and that the title did not vest in the parties to whom the assignments were made because she expressly stated it should remain in deceased. Upon the authority of Noble v.
Judgment is affirmed.
We concur: Chipman, P. J.; McLaughlin, J.