4 Edw. Ch. 215 | New York Court of Chancery | 1843
The objection of misjoinder of parties and that the defendants Sarah Pollock and Susan Pollock should be proceeded against separately is not well taken. The case of Fellows v. Fellows, 4 Co wen’s R. 682, is a decisive authority to show that, although they hold distinct moieties of the stock in controversy, they may, under such circumstances as exist here, be proceeded against jointly. Andrew Pollock is, for form sake, a proper party and the two sisters might have objected if he had not been made a defendant: on the ground, if on no other, that if they lose the stock they ought to have a decree over against him. The Mechanics’ Bank are properly made defendants for the sake of the injunction and a decree directing the stock to be transferred on their books : Lloyd v. Loaring, 6 Ves. 771. I consider that Jarvis & Scrymser are not necessary parties to this suit. They have no concern in the alleged equity of the complainants to follow the stock. If they are liable to the complainants for money as upon an overdrawing by means of the checks, the complainants must pursue their remedy at law against them; and this they may or may not do as they shall think proper, whether they succeed or not in this suit in rem against the stock. If successful, the only effect will be to lessen their demand so much against Jarvis & Scrymser.
Then, as to the merits between the complainants and the Misses Pollock. According to the statements in the bill, the latter have lost nothing. They are but volunteers, having paid nothing for the shares of stock in question. The former shares which they owned still belong to them. A transfer under a forged power did not pass the title from them and they have only to look after and reclaim their own property. But, still, if the complainants have no right in equity to follow the property, this court will not help them to wrest it from the hands of the defendants, although they be but nominal owners and without value paid for it. The bill shows that the money of the complainants tortiously taken from them has been applied to replace morieyof the National Bank which was used to pay for the purchase of the spe
I consider that this case falls within the principle laid down by Mr. Justice Story in 2 Com. Eq. 503, § 1258. The identity of the property is shown and traced ; and, under such circumstances, it can be laid hold of by a court of equity and distinguished from the property of all other persons and handed over to the equitable and rightful owners : Thompson v. Perkins, 3 Mason, 232, and cases there cited.
The demurrer must be overruled, with costs; and the defendants must answer on the usual terms.
