44 Ind. App. 401 | Ind. Ct. App. | 1908
This was an action in replevin by appellant to recover possession of a certificate for fifteen shares of the capital stock of the First National Bank of Michigan City. At the close of appellant’s evidence appellee moved that the jury be directed to return a verdict in its favor. The court sustained the motion, whereupon appellant moved to dismiss her cause, but her motion was denied. A verdict was then returned in accordance with the direction of the court, and judgment was rendered thereon for appellee.
The errors discussed are all included within the assignment that the court erred in overruling appellant’s motion for a new trial.
There was evidence by appellant to show that she was the owner and in possession of said certificate of stock at the time the assignment thereof was made. Her husband was indebted to appellee for over $3,600. Appellee bank through its agent, the cashier, demanded that appellant’s husband furnish further security for such indebtedness, and he told appellant’s agent that his wife owned certain bank-stock, which he could get for security. Said agent agreed to such an arrangement, and appellant’s husband procured the certificate, here in dispute, and presented it to such agent, but owing to the fact that appellant had not indorsed said certificate in the proper place it was taken back to her, at the agent’s request, and she signed her name at the place indicated by said agent. Appellant got neither money nor property for said assignment; neither was any money obtained thereby expended upon or for the benefit of her separate property. The certificate of stock was indorsed to secure notes given by appellant’s husband for money loaned to him by appellee, and used in his individual business.
From the evidence in this case a jury would be warranted in drawing the fair and reasonable inference that appellant indorsed said certificate over to appellee to secure her husband’s individual debts.
A contract of suretyship entered into by a married woman is void. §7855 Burns 1908, §5119 R. S. 1881.
In the case of Thompson v. Peck (1888), 115 Ind. 512, 1 L. R. A. 201, the court said: "Where the possession of property has been wrongfully obtained, by means of a voidable contract, and the vendor has received nothing of value, the bringing of an action to reclaim the property is ordinarily a sufficient disaffirmance of the contract. But in case money has been paid, or the purchaser’s promissory notes have been received, replevin cannot be maintained for the recovery of the property while the vendor retains the money or notes for the purchase price.”
A certificate of stock is tangible personal property, which may be recovered by an action in replevin. Smith v. Downey (1893), 8 Ind. App. 179, 52 Am. St. 467; Read v. Brayton, supra. 2 Cook, Corporations (4th ed.), §577.
Other reasons assigned for a new trial may not arise upon
The judgment below is reversed,- with instructions to sustain appellant’s motion for a new trial, and for further proceedings not inconsistent with this opinion.