209 Pa. 197 | Pa. | 1904
Opinion by
This decree must be reversed for want of parties necessary to sustain it. The learned judge below was clearly right on the general principle of law that the holder of a certificate of stock, with an irrevocable power of attorney from the owner to transfer it, has the indicia of property and has and may convey a good title by transfer: Lightner’s Appeal, 82 Pa. 301; Shattuck v. American Cement Co., 205 Pa. 197; Cochran v. Fox Chase Bank, 209 Pa. 34. But in the present ease the complainant bank does not claim as owner, but as pledgee for a debt of the legal plaintiff Wadlinger. The original debt for which the stock was pledged was long ago admittedly barred by the statute of limitations, and even the judgment entered in 1880, if for the same debt which may be implied but is not specifically found, was presumably paid before the filing of this bill in 1903, for although a scire facias was issued in 1885 no judgment of revival was ever had upon it. The running of the statute on the debt would not necessarily bar a recovery on the collateral, but it is a circumstance to be considered. John Wadlinger, the pledgor, certainly continued to assert his title to the stock down to about 1878 by drawing the dividends. After that neither party did anything. The plaintiff bank went out of business in 1878, and though it got a judgment against Wadlinger in 1880 and issued a scire facias to revive in 1885 it proceeded no further, made no levy or other effort to get possession of the stock, or even notified the defendant bank of its title as pledgee until 1903.
On the other hand Wadlinger did nothing to assert his title by collecting dividends or otherwise after 1878 down to his death stated as “ five years ago.”
On this evidence the court below found that Wadlinger had abandoned his ownership. But it is clear that his estate cannot be deprived of an apparent asset without a(hearing. If he were alive he would be a necessary party to this foreclosure of his pledge, and now that it appears that he is dead his representatives are entitled to their day in court. Had the plaintiff bank presented the certificate and warrant of attorney and secured a transfer in Wadlinger’s lifetime it would thus have completed
The dividends presumably were due when they were declared, and the right to them apparently remained in Wadlinger under the terms of the pledge, for he collected them without objection down to 1878. The burden of proof as to his abandonment of his right to them was upon complainant, and on this as on the other questions in the case his representatives were necessary parties.
Decree reversed.