*1 Leitch al. Wells et v. of case. Statement “ take her until she should at New York, York,”

of New authorities Havana.” “from New York to (See departure to Eliza- This was violated deviation supra.) contract or and the without beth, necessity, responsibility compulsion ceased. thereupon the underwriter costs a trial ordered, be reversed and new should Judgment to abide event. concur.

All reversed.

Judgment Henry D. v. al., et Leitch Respondents, Wells, et

President, etc., al., Appellants. bequeathed trust, a pay certain sum is Where executors in the interest one, at a upon thereof fixed and rate stated his death to divide principal among others, cannot, the executors without consent que trust, or, the cestuis they infants, in case are of the order court, apart appropriate set bank stocks to the satisfaction trust, per- and release the liability residue of the estate from its form the trust. que may accept appropriation; The cestuis trust assent such an if, done, parties before this is intervened,' new interests and new have property the situation of the at the time of such must intervention rights determine the of all claim to who be interested it. , right An executor has to sell and transfer stocks other securities of estate, faith, price buys good paying money and one who agreed upon, upon money security loans property, who is not responsible application for the of the purchase-money money loaned, right and his by knowledge transferred is not affected upon part, of a legacy existence claim or a debt generally. the estate prevent acquisition

As not coverture does property by woman, married the fact of coverture does not affect the title' her; to stock transferred and where the stock stands in her name' the ownership her; certificate is evidence of its absolute and in case there nothing is in it indicating or connected with it trust favor of another person, loaning one money pledge of the security stock as making assumption warranted loan of such ownership; inquire he is bound to and ascertain she how obtained it. III.

Sickels—Yol. et al. *2 of

Statement case. does by of an action the service of a summons not commencement The parties affecting persons pendens to the action. To a Its third create pendente purchaser judgment, lite the there must also be a bill bind a purchase, complaint the of which the claim on file at time his set forth. the one, courts, pendens of is a hard not a favorite of the and The rule lis clearly it. bring the of it must his case In party claiming benefit within presumed proof, therefore, it not be the com- of will the absence prior entry judgment. the of plaint filed commerce, passing from to hand commer- of hand like are articles Stocks pendens lis paper, of constructive notice is not and doctrine cial (Earl, 0.) applicable them. passes by assignment delivery of a bank and legal title to stock The therefor, although there be no transfer books of the certificate the bank. of May 9, 1872; term, January decided (Argued Appeal the defendant Wells from Henry of the Court in the Supreme of the General Term fifth judi- of Term in favor district, affirming judgment Special cial of plaintiffs. action was brought September, plain- Leitch, K. deceased, of Catharine compel children

tiffs, of to them shares of the the defendant transfer by Bank, of the Tompkins County stock capital Bank of Syracuse, of the capital shares an account and share, per payment value $100 par thereon. received the dividends the said stock, substantially alleged complaint stock of the shares capital Onondaga County and fifty value share, of $100 also of Bank, per amounting par had, value of tenth $25,000, previous par aggregate been set October, 1850, designated appro- apart, day will Daniel executors Kellogg, priated by fund of that amount him to them a trust deceased, given by K. (who of the said Catharine benefit for'the life children after her death; her her during daughter) executors, said subsequently, one that John Kellogg, stock, transferred the said with and during year shares Bank of fifty-five shares of Syracuse, twenty-six Leitch et al. Wells Statement case. additional, Bank, County belonging Onondaga his wife, W. of Daniel to Paulina

estate Kellogg, Kellogg, the said without banks, transfer respectively, books of therefor, her consideration given knowledge, usual in her name in the and he therefor received scrip the said Pau- made, form that after transfer had ; been lina W. at the of the said John request Kellogg, *3 form husband, of in the usual blank attorney, signed powers for the transfer in that the of stock companies; incorporated said stock continued to stand in her name at the time of the action, never, commencement of this the said scrip in her fact, been possession. It then on the 29th of that, ¡November, 1861, alleged day Leitch, the said and the this suit, Catharine K. plaintiffs the said and commenced their action John against Kellogg, Paulina them in W. and duly impleaded respect Kellogg, the said so set and said executors stocks by apart appropriated said Daniel in satisfaction of said legacies Kellogg, and her of said Catharine children. for the benefit $25,000 of issue that, And then after subsequent joining stating the death of said K. in the said and after Catharine action, October, on the 3d day died intestate (who 1862), court, filed and was, order by supplemental complaint D. Leitch and David K. served, which Kellogg, duly by Kellogg Catharine, administrators of were substitu- the said appointed in the of said Catha- action, in the said ted as place plaintiffs said ; that answers were supplemental deceased rine, put it therein; that was and issue joined duly complaint, had in said action were thereupon such proceedings alleged final on the 12th and of September, that afterward day ordered which was action, entered said by stock by of said that, apart and setting adjudged stock shares of the capital the said executors, wit, said shares the said Bank, seventy-three County of the Tompkins and the fifty Bank of Syracuse, stock of capital Bank, County of the Onondaga stock shares capital time from the John Kellogg the said the same held were Leitch et al. Statement case. .of until the death the said Catharine K. setting apart Leitch, trust, the annual income thereof the said pay Catharine K; her death cause, her children, became the owners vested with absolute title to the said that the stocks, same, from time to the have present, be, continued to still vested are, in these all with plaintiffs, thereon, dividends together unpaid and that the and transfer of said sale stocks pretended said John the said Paulina was void and vested Kellogg in her no title to the same.

It is then that since the commencement of said alleged action the said John the said Paulina W. while said action wit, pending, some time in the 1863, the year said Kellogg, assuming to act as for said said Paulina, under blank attorney attorney, powers assigned scrip ninety-nine of the Bank of so him shares held Syracuse, *4 in the name Paulina, of to the defendant the American and delivered them the said and Express Company, scrip, that 1864, in the of month while said action was also April, he in like manner the for shares pending, scrip 107 assigned stock of the capital Bank Tompkins County to the said American in like manner Express Company, delivering said to them. scrip then,

And the after that the said stating company still the said at the of held time the commencement of scrip that own and be entitled action, claim to to the they the stock, same and have same transferred the books of said and had demanded allowance of banks, the them, transfer and after some denial making allegations own, of title the and the of their asked company, asserting said stock to their judgment, declaring property, said to them. of delivery scrip directing The defendant Wells answered said Henry complaint, the transfer and Paulina W. delivery by admitting Kellogg American of 124 shares of the Express Company capital the Bank of and of shares of stock of 107 1862, Syracuse Leitch et v. Wells et al .1872.] of case. Statement of Bank in 1864, stock capital County Tompkins are and all they plaintiffs,

denying a belief information sufficient form whether or knowledge same be shares or of stocks mentioned scrip All the other were complaint. complaint allegations in issue. put n

The defendant answered and as a farther and alleged sepa- rate that the for said shares defense, scrip of the Bank of with Syracuse, regular assignment transfer thereof, and a attorney power authorizing a transfer thereof to attached, directing express company or about 20th delivered was, day May, 'as collateral for the loan of then made $11,000, security said John for the said shares scrip of the stock the with a like Bank, Tompkins County assign- ment and on or attached, was, about the attorney power 25th March, delivered to the said day company collateral loan of then made $10,000, to said security John he that the said made said Kellogg; loans alleges company the faith faith, the said good shares security of said and well at the believed time that the said stocks, had to deliver the right, same authority power therefor; the said no had security company knowledge of the matters set any of the claim up complaint, other to the said and had any person stocks, no reason to believe that the other than plaintiffs, said any person Kel- interest in said stocks, that the said logg, loans remained and that the first wholly unpaid, knowledge *5 had of said claim of the to said company any stocks plaintiffs was the commencement of this action.

The issues were tried aat Special Term, following facts were found:

That the of fact in the com- principal allegations plaintiffs’ were that the for the plaint proved, except scrip seventy-three shares of stock of the Bank of was delivered Syracuse American on the 30th Express Company day May, instead of the as stated in said year 1863, complaint. Leitch et al. «. Wells

Statement case. from in was received That the said question Second. scrip as collateral the American Company, John Express Kellogg, at the time said for loans of made company money, security of said part said actual knowledge Kellogg, K. Leitch Catharine of the suit of company pendency and Paulina John and the Kellogg present plaintiffs against or of any W. in said wife, his mentioned complaint, Kellogg, in to the stock action, question, in claim of plaintiff under and trustee or that John was executor Kellogg deceased. will of Daniel Kellogg, no action obtained That the said Third. plaintiffs the pen- the transfer of the stock during restraining injunction did for action, receivership nor dency they apply the stocks. conclusions these facts the said found as

And upon judge hands fund That the said a trust 1st. stock was of law: and the of the will of said Daniel the executors Kellogg, of $25,000 them, survivor payment legacy children, and her him to the said Catharine bequeathed by the said 2d. That the in this suit. assignment plaintiffs his Paulina W. wife, John Kellogg, stock by Kellogg Catharine the cestuis void, trust, fraudulent against que and transferred children the and her Leitch, plaintiffs, K. That the her. 3d. title in said stock to assign- fact no valid John the name of stock the said scrip Kellogg ment of W. the American Express Paulina his wife, Kellogg, in said com- the same not vest title to did any legal Company, vested title said stock and if equitable thereby any pany, equity to the paramount in said was subordinate company, the said That 4th. stock. in this to said suit of the plaintiffs said pendency during received scrip company having in her life- K. Catharine commenced by the action in this suit and the time, in that suit wife, the judgment W. Paulina in this present of the said company the claim conclusive upon to a entitled were 5th. That the plaintiffs action. of the said stock by company a transfer directing *6 591 Weixs et al. of case. Statement théreon dividends accrued and for payment Wells, defendant president Henry

with costs against said company. conclusions taken the several were duly Exceptions with entered conformity law. Judgment subsequently the decision. The stocks O. Vorst for the Van

Hooper appellants. v. in trust. were not held (Diven question 1 A trustee 302; Hand, N. Talbot v. 36 Lee, Y., King, 76.) trust estate to bona dispose purchaser, may fide 977, so as the cestui trust. to bar notice, (Story’s Eq., que §§ 2 401; Kent, Oliver v. 3 U. 1264; Wells, S., 333, How. can

307; 728, 1 R. Executors S., 58.) pledge mortgage § 2d 280; of the estate. on (Dayton the assets Surrogates, ed., 4 Hertel, Ex’rs, v. Williams on vol. Hill, 492; 2, Boget 2 Dickens’ Hutchins v. 725; Bk., State 838-841; Rep., pp. transfer on the bank books was Metc., 421.) 12 Ho actual defendants’ title. Cor necessary perfect legal (Angell Co., Pick., 98; v. Ins. 8 Franklin 564; Sargent porations, § Bank Attica v. Co., id., v. Essex R. W. 9 202; Sargent Jewell, J., 2 Mt. H. T. Co. v. 17 N. Cow., 770; Smalley, 22 Wend., v. Bank Bank, 348; Corn 117; Kortright 20 The doctrine of Y., v & T. N. Bank, Attica M. defendants, Us does not affect does not pendens appear 1 544; filed. Vernon, 318; Daniels’ (2 complaint Sugden, v. Bucklin, 9 Ch., 56; Hayden Paige, 514.) defendants, were roll evidence who not parties. is Ev., 522.) Greenleaf’s (1 §

B. Pratt respondents. action pendency to all notice persons purchasing subject-matter after the commencement the suit. action v. (Murray 577; 1 v. Ballou, Ch., 566, J. Same 2al., id., Lylbern ; 445 Jackson v. Andrews, Wend., 152, 7 156 Parks 441, ; id., 457; v. Jackson, Stuyvesant Hall, v. & Ch., 151; Pulveroft, 200;

Barb. Beams, Ves. Metcalf *7 et al. v. Wells 592 et al. per Lott,

Opinion Commission, of Ch. C. v. & 2 Ball Durdin, Beat., Gaskill v. 147; Harrington Slade, 22 Barb., 161; Ch., Jackson 4 381; v. Sand. Lassee, v. 9 v. 2 Hayden Bucklin, 512; id., White Paige, Carpenter, Tiff, on 252; of 217, Trustees, The absolute owner 821.) convert property may himself trans trustee, into possession, muting by declaration of trust in proper (Tiff, on writing. Trustees, 354; Moak v. Kittlewell, 1 Hare, 404; Suarez v. 2 Sand. 4 Pumpelly, Ch., 336; Hare, 120.) The charter of the Bank and the Tompkins County gene ral law make the stock these banking of banks transferable on the books of the banks only. (Laws 511, 27; p. § Laws of 1838, The interest p. 19.) which passes § in such cases delivery scrip equitable Bank v. N. (Mechanic' Y. & N. R. only. H. R. Co., 626; 3 Kern., 600, Union Bank v. Love, Georgetown 1 Wheat., Stebbins v. 390; Phœnix 3 Fire Ins. Co., Paige, 350; 2 3 529; id., 544; 5 Conn., id., ; id., 246 6 The 552.) equity must take plaintiffs, time, being prior v. 22 N. (Bush 535; Muir Lathrop, Y., v. preference. Schenck, husband is Hill, 228, 546.) incompetent to his wife. v. convey directly (Van Arydale Wright, Lalor, 260; Duer, Dempsey Tyler, C. The stock in Lott, Ch. question stood the name of W. the certificates Paulina issued banks title thereto were evidence its absolute ownership her. in them, There connected nothing therewith, a trust in or indicate favor of other Their show person. to the with a express power production company, attorney her in the usual form for the transfer of stock signed warranted and it mak- companies, incorporated justified it did on the the loans assumption ownership. ing of those certificates and assignment delivery the said with thereof company, powers attorney, vested the title to legal company.

A transfer on the books oí banks necessary Leitch et al. Commission, per Lott, Oh. C. *8 v. The Bank Commercial purpose. (Kortright 20 Wend., and the Commercial Bank Buffalo, 91, v. C., error, id., S. 22 McNiel 348; Kortright, Buffalo v. Tenth Wational decided in Bank, Court of Appeals 46 N. Y. R, 325.)

The fact Mrs. awas married woman did not Kellogg affect the title of the Her coverture thus acquired. company did not her, prevent acquisition property by pur- chaser thereof not was bound to or ascertain how she inquire obtained it.

If it be conceded she did not hold it her separate estate, -husband, in that case, have asserted his might marital and claimed it as his under the own, that, rights circumstances disclosed in this not invalidate would case, His impair right company. making agency transfer would him from it. estop (See questioning Edgerton v. 5 Thomas, Seld., 40.) is,

It claimed that the however, defendant’s title is affected in the suit of Catharine K. Lietch by judgment and the in this action John plaintiffs and Paulina against W. Kellogg referred to in the on the that the Kellogg, complaint, ground controversy its purchased during pendency. That claim or is not available. position The facts do not it complaint show nor is alleged found tried who this action that by a lis judge fendens was created that suit. by “ reference to it is that on only allegation 29th of November, the said Catharine K. Leitch and the day in this suit commenced their action the said W. Paulina duly impleaded them in of the said etc.” There is respect stocks, no aver ment or statement when the therein showing complaint was filed, reference to and, record, appears from summons that it was not filed when that was served, and it is shown itself that it was not verified complaint till the 12th of 1862. The commencement March, action the service of the did summons not create lis

Sickbls—Vol. HI. 75

594 et al. «. Wells [May.

©pinion of Commission, per Hunt, third pendens affecting persons, action. parties for that complaint filing- necessary purpose. “ Ch., Vernon, 318; Bouvier’s Law title Lis (See Dict., Pen 14th dens,” ed., 2, 76; vol. v. Ch. Ballou, Johns. Murray 566, etc.; v. R., Murray id., Hayden Lylburn, 441; 512, 514; 4 Bouvier’s Bucklin, 9 Paige, Inst., 514, 516.) stated, in this It also be that the connection, may complaint, the claims of title after defendant to the stock stating stock, under the transfer of the scrip impeaches certificates *9 “ on the sole that neither the John its said validity ground W. Paulina had or title thereto, nor any right Kellogg Kellogg said could confer no title thereto to therefore right and that the saidstock wasthen the company,” Express in that and the proceedings of the plaintiffs; title, be stated plaintiffs’ part (cid:127)action appear of the Express company not for charging purpose It however, is, unnecessary was bound judgment. that the It is sufficient allegations say the inquiry. pursue are not of the court suffi- and the findings in-the complaint notice with constructive charge company cient that it had it is found and: or title, expressly rights plaintiffs’ or of of the suit, of pendency actual knowledge no John the stock question, plaintiffs claim will of Daniel under the and'trustee an executor Kellogg deceased. Kellog, n it is to con- conclusion, at this unnecessary arrived Having are in that suit in the complaint whether-the allegations sider of with notice third to charge persons specific sufficiently claim. plaintiffs’ reversed stated, be must, on ground

The judgment the event. to abide costs ordered, trial hew- transferred John 1858, Kellogg InC. August, Hunt, shares seventy-three W. Paulina wife-, his- John In of May, Bank Syracuse. stock capital shares to his wife manner in like transferred Kellogg The trans- Bank. County of the Tompkins the capital et al. m2.] Commission, per Hunt, banks, and

fers were made on books of the duly respective new which certificates issued in the name Mrs. Kellogg, were delivered to her or agent. the secu defendants afterward advanced $21,000 upon of a an to’

rity transfer of these certificates, authority transfer them to banks, themselves on the books viz., on the stocks 30th of May, 1862, $11,000 upon first named, $10,000 and on the 25th of March, the stock the' described. claim lastly defendants title obtained to these for reason stocks, no that John held the same as trustee under the Kellogg will of Daniel themselves, their mother and Kellogg and that the transfers the same were' Kellogg violation that in law duty trusteee, and notice the interest in' of the plaintiffs defendants.

the stocks. John undér was, also, executor will Daniel An is not executor, Kellogg. denied, make a transfer of may which will ar personal property give title ato bona purchaser, transfer is" good although fide *10 made in violation of the of the executor. The exécutor duty the is owner of the the testator; of personal the property absolute title vests in and him, he the posesses jus disjponendv tp' in its full force. The honest is under no purchaser duty that the see are the executor. moneys faithfully applied by 492 Hill, 2 Wms. (Bogert Hertel, ; Exrs., 838,-841.) a trust, to be if I Assuming under argument, correctly in stand addition it, to point this, is notice, trust became executed, absolute in' vested Mrs. ownership Leitch and her and Children, John consequently Kellogg title no and none whatever, could be transferred him. Iff view, was’ question presented this* prominently, stock held John specific trust under Kellogg property the will of Daniel ? It amounts a claim that Kellogg if to-be dealt with as stock Daniel Kellogg, creating trust referred his to, had, will, set and devoted this' apart to the satisfaction of that trust. éstate;

Daniel died a leaving very large al. v. Wells Leitch Commission, per Hunt, made his he death, made ten before will, dispo- his years By his and his seven chil- wife sition of chiefly will, clause, its first Kellogg, dren. The appointed A. executors of and David Comstock F. Leitch George follow- contained, others, It also provision among same. . unto the said John I bequeath ing: give “ and David A. their executors Comstock, F. George the sum of administrators, $25,000, trust, pay rate of seven cent interest, annum, at the per per Catharine K. $25,000, Leitch, said sum of my daughter, use her exclusive of her for her sole life, separate during and which alone shall for her be sufficient husband, receipt and from and after the decease of said discharge, my daughter sum then, said trust Catharine, $25,000, death; at her if more than one, her child or children living divided between but if she to be shall not them; equally at her then death, have child will is that $5,000 living my husband, if said sum shall be paid any living, remainder of the sum of $25,000, shall $20,000, being and become and be into, sink residue of part my per- and if shall not sonal she have child or estate; husband at her then will is that the said death, sum of my living $25,000 shall sink into become residue pait estate.” of my personal made a

The testator the same for his provision language Mrs. and also for his Converse, unmarried daughter, daughter, Maria Sally Kellogg. all took

The executors of the estate of Mr. Kel- charge and there is no evidence interference with them logg, 1848. In that filed Until the bill was year year by Augus- *11 Converse, as administrator of his wife, tus of daughter died in Daniel of that Kellogg, daughter having January After out the will of Daniel the com- setting year. Kellogg, other that the executors had among plaint alleged, things, taken themselves the execution will, estate of the value $450,000 was of and dollars, personal to recover the in the claimed distributive share of his wife et al. Leitch Commission, per Hunt, answered, defendants and a estate. The was in. reply put In in suit, same presented May, petition the executors which of each of is and insolvency alleged, receiver to take praying appointment charge of the estate. was ordered that Mr. Leaven- property .It worth be such and that the executors receiver, appointed transfer to him all and estate, effects of the under the order Cutwater, of Mr. 10th of referee. On the and October, 1850, transfer was made conveyance by executors, with certain It is and means exceptions. effect of such that it is exceptions claimed that the

stocks in became with question the trust for impressed $25,000, favor Mrs. her children. The “ are as follows: exceptions how- Excepting reserving, ever, from a certain fund assignment, of $25,000, con- of shares of stock sisting capital Tompkins County Bank, and shares $12,700, amounting capital of the Bank Syracuse, $7,300, and shares amounting stock in the capital Bank, Onondaga County amounting $5,000, the said sum $25,000, with the making certifi- cates and vouchers which fund thereto, has pertaining been set apart, the said designated appropriated, parties the first as such executors and part, trustees as and for the in and sum of them $25,000, said will given trust, Daniel the interest thereof to Catha- pay Leitch, K. wife of the said F. Leitch, rine George during in trust her children, and then life, fund is not which under this stocks described had pass assignment.” fact, been, were, not then never set apart appro- executors for stated. The priated by purpose Con- verse suit settled and the subsequently parties, and effects transferred to Mr. assets Leavenworth were by him so transferred executors. the learned with who delivered

I agree judge, opinion fair test to below, the court determine whether these devoted to the became satisfaction of this specifically stocks banks had if the failed and this, trust the stocks become *12 Leitch 5.98 Commission, per Hunt, Leitch the loss have fallen Mrs. would

Worthless, the If are stocks ? yes, lier children then feferrecf are trust; the if not. they not, impressed with to be facts In certain further are determining question, considered: or this exception

1. That the directed order of court no con- was the reservation. general, order executors qf in their hands, all the estate Mr. vey voluntary, or The exception limitation. qualification was thg executors. is recital voluntary declaration of the is no exception. 2. There judicial recognition of this the document in no evidence that is the state- There which to or court. ment made presented was sanctioned H., F. Leitch, 3. D. David George Kellogg neither, suit, were of parties in the them present in which this action This occurred. Converse suit October, made an instrument was exception execute^ was of of time, fifteen; 1850. At Kellogg age D. of H. of the F. of the David seven, age age George ten years. $25,000

4. The interest children these not vested estate. could fruits Although they enjoy dur- their the life of the title once ing mqther, at vested each, birth the estate infant perfect, interest,. law as if there were no intermediate life n 5.At that time, estate 12.Í Kellogg Daniel owned shares, shares of the stock, Bank Tompkins ninety-nine stock, and shares of the Bank Syracuse Onondaga all of stock, $33,100, of the total trans- value were which Paulina ferred W. What Kellogg. twenty remaining Tompkins shares of became shares, and the stock, twenty-six Bank remaining stock, Bank does Whether appear. not these Onondaga are shares to be supposed impressed remaining with- the also have been they trust—whether applied discharge debts, trusts of other estate, whether does have been squandered, they appear. *13 v. Wells al. et al. Leitch et Hunt, per Opinion Commission, of the O. more than $8,100 value these stocks was

aggregate Mr. trust. By Kellogg’s the amount of original created, property appro will a trust was but no particular same, The interest on the given its satisfaction. priated Leitch, $1,750. be to Mrs. was to cent, at seven paid per less, or or more might yield might These yield stocks might full $1,750 still sum of banks, failure of lost by I or to her children. to Mrs. Leitch must be annually paid certain Leitch, of Mrs. the formal consent that, doubt not by execu by be set appropriated apart might trust. Woodv. 5Wood, ( Paige, tors satisfaction could be made no such by appropriation 596.) Surely her which should have the effect consent, executors of the estate from its release the residue liability perform I find evidence that Mrs. case trust. do in these stocks for Leitch consented accept purpose. and was discontinued—Mrs. Leitch’s suit wassettled

Converse This on her was,doubtless, assent assenting. part attorney such settlement. necessarily dependent upon to everything of that settlement is not terms were shown by What the of his obtained such satisfaction wife’s Mr. Converse case. estate as he was There is willing accept. interest and declaration of trust exception to indicate that the nothing an essential that it to was part judgment, referred to or understood Mrs. communicated Leitch. the statements in the bill appears by plainly original contrary her in and the bill March, 1862, filed filed supplemental If there had a failure November, been of these 1863. Mrs. would have been entitled to banks, Leitch still from the $1,750 annual sum of estate. Mrs. Leitch’s life end, at an children, who were interest minors being during suit, $25,000. Converse now claim the pendency has decided the Court It been Appeals, King Y. it R., Talbot N. violation of (40 76), duty trustee executor to invest the funds his under control in If bank stock. he assumes to do is at his so, investment and the risk, ward or infant can on reaching repudiate [May. Commission, per Hunt, 0. If $25,000 had been invested

majority. trustees in these bank specifically stocks, investment could not have been valid, much less can it bind the infants *14 when it is a mere statement that there ais setting apart such stocks in their already hands, and made the without or consent of the infants. An knowledge infant’s consent cannot what would otherwise be justify it illegal, certainly cannot relieve that there is no illegality pretense consent. on 382 (Hill Trustees, The form of [585]). pro devised to infants perty cannot be even changed by legislative the same authority, trusts are the although impressed upon in its property, form, as existed. changed originally (Smith 35 N. Brown, 83.) Y.,

It is that my there was judgment never legal appropria- tion of stocks in trust. question to the satisfaction of this remained the hands of the in their They executors assets charge. has

There been no nor acceptance by plaintiffs, assent them to the executors of these appropriation by stocks to satisfaction of the until after the defend- trust, ants’ had attached. interests and Hew new rights parties intervened, situation at the time having of such intervention must determine the of all who rights claim to be interested in it. of the referee in the suit

By report of D. et John Leitch al. v. Kellogg Kellogg Paulina dated 22, it was that 1864, the stocks July adjudged were with the trust favor of question impressed that children, Mrs. and her transfer to Kellogg Mrs. and her void; Paulina Leitch children Kellogg to all made were entitled the dividends previously made that suit, stocks. veri By original complaint fied that John March charged Kellogg his individual shares of received into 300 possession capital 100 share; value the Bank of per $100 stock of Syracuse, value dollars share; Co. Bank, fifty shares of Onondaga shares of Tompkins Bank; of Auburn 1,200 shares al. per Commission, Hunt, C. Opinion of the transfers time he made Bank that from time to County ; his were fraudulent. It Tomp- wife which alleged Mrs. fund in favor of kins Bank was set trust stock apart and her was said complaint children. Kellogg Nothing about the in the Bank of Syracuse.

Unlike must executor trustees, may who act one unitedly, assets the estate by bind effectually dispose single act. (Hill Trustees, ^[466] ; 2 Wms. Exvs., The stocks in were transferred question

Paulina W. were transferred to Kellogg. By they their defendants, who advanced on the faith of money was executor, *15 security, knowledge that his that wife, Paulina was there was litigation ques- any tion source from it. would this any respecting Ordinarily defendants a to hold the stocks the amount give right The their advance. executor has the to sell and right transfer, and one who of him in faith, in buys good pays n money is not for the price agreed upon, responsible appli- cation of the (Authorities purchase-money. supra.) same rule one who loans applies money security of the v. Tenth (McNeil National property. Bank, N.

R,Y.

It is said that the commencement of the in suit December, 1861, Mrs. Leitch and was children, notice to all the the defendants world, of the included, claims the plaintiffs as this stock cestuis that in que trust; theory law the defendants with notice of all the bought facts, and in same asif stand position received actual they notice If am them. I in that my these right opinion, stocks were not to a trust, this subject does specifically question not arise.

It would then be the case held an executor, a and a claim a or debt the estate legacy generally.

This does not a transfer of prevent portion estate to one aware these facts. If it in exists the case, the ques- lis tion of is pendens one. embarrassing is There no doubt of the a rule, general pen- purchase III. Sickels—Yol. Lbitch et al. v. Wells per Hunt, Commission,

Opinion of the suit, lite dente not vary rights plaintiff does the alien- in suit from is who to receive any prejudice faith, ation, that, good he although money pays in the suit. is bound purchaser rule of this statute of State material alteration makes a aof estate, real enacting pendency regard a suit is not until the notice of Uspendens notice stranger where is officeof the filed the clerk’s actually county notice, actual land is no situated, as to one that, having a consideration, a faith, acquire he and for may, good good filed. title, until such notice is (Code, 132.) good § n This relaxation of estate only, a rule to real rigorous applies at com- the rule remains and, as personal property, one rule, be harsh mon law. It conceded to no based, It was doubt, unjustly. sometimes operates office like the office, that the recording register’s the theory attention, was that the examination, now, proper open from there, would purchaser looking protect injury^ that for this established, rule, was Hence part not to deemed as until was commenced suit purpose filed. A the actual commence- bill actually subpoena one for the but, ment charging proceeding, purpose suit with notice of the the suit not party proceeding, *16 a to have been suit commenced the was deemed from only Thus the filed. in v. Ballou of bill Johns. Murray (1 time in cited Chancellor opinion below, Ch., 566), Kent says: “ no that Ballou had in fact, of the suit Admitting knowledge, Winter, he is Oreen Mrs. nevertheless chargeable so to notice, render his constructive legal with purchase The the event that suit. established rule that is, subject collusive, and not a duly prosecuted, Us pendens, notice his to affect and bind so interest the decree; purchaser, Us from begins service of the pendens subpoena filed. the bill is after this is no an chancellor more than says,

The adoption where, law, of the common if rule defendant aliens writ, in action real pendency after v. Wells Hunt, Commission, per Opinion of It was one of ordinances such alienation. will over-reach administra laid for the better he down Lord says, Baooít, that “no decree in the Court of tion Chancery, justice from the Iona conveyance bindeth cometh any fide no exhibited, made party, the bill so defendant before m lite, he nor order; neither bill where comes pendente in full color the suit is and while prosecution, the decree then court, of the of allowance or regularly privity the Chan 511.) This Works, bindeth.” vol. (Bacon’s p. of the and it makes rule, liability declares to be the

cellor has exhib been fact the bill purchaser depend upon v. The case of Culpepper ited purchaser. previously book, where is cited Ch., same 115) Austin Cas. (2 fee, had his lands to executor, testator conveyed for his the defendant trustee debts, purchased pay filed his bill to have a valuable consideration. heir that it was not needed debts. on the land, pay ground The defendant lost having purchased paid purchase, Ch., exhibited. same the bill was Johns. (1 on the 578.) day Winchester v. are cited: the same Bishop In opinion Anon. Preston v. Tulbin 286); (11 Ves., (1 Vern., Paine 194); v. v. Madox Finch Newnham id., (id., (2 318); 459); (1 Self which it the bill each of id., appears actually 216); filed before made. been purchase v. the chancellor

In Bucklin R., 513), Hayden (9 Paige “The therefore, consideration only question, says: is, the mere is to deemed a issuing subpoena whether so as affect court, Us trans validity pendens here as fer of subject-matter litigation purchaser It was held that it the trans lite." was not. There pendente made intermediate the had been the subpoena fer issuing also McLaren, R., service. (See Hopkins and its Cowen *17 statute, 4 v. Bucklin, Anne (cited Hayden supra), By that no issued until it was enacted should be bill subpoena in In other words, save cases. filed, excepted filing the commencement of the suit. for a was, the bill was Such Leitch et Commission, per Hunt, of time, in until State, this adop- long period practice Ch. in 1848. Barb. tion of the new (1 system practice Practice, Under this the rule was uniform 1.) practice, was filed and a served the suit was where bill subpoena deemed to be commenced, any subsequent acquisition interest was obtained therein. decree to be subject in

The rule that be inferred from might expressions cases, some filed after bill was the commence- ment of the suit related back to the of the subpoena, issuing has for the not, we are adopted been purpose considering, the rule in this State. It one hard, indeed, would where be there no Us honestly purchased paid, pendens, fully being that a and of to which subsequent act, he not consenting he which had no create a retro- should Us knowledge, pendens was actively, become invalid which thereby purchase, valid when made. It perfectly would be hard not only, in violation of just principle. in this

By State, existence when the action practice of Mrs. Leitch commenced, it was not required that nor should be complaint filed, even at the served, commencement the action. The suit might be commenced summons alone served defendants, summons served complaint the defendants.

In neither case was it law rule required by any that the court should complaint be filed at the commencement of the suit. (Code, 127, 128, 130, amended 1849.) §§ roll was When made it was judgment up filed, required should be therein as a complaint incorporated part of the record. This was (Code, indispensable § record. section are up making By pleadings be filed ten after or the required days service, opposite its party might compel pain abandonment; filing section If not imperative. filed, the opposite done, Could or that the should party compel pleadings As a be abandoned. matter of fact I believe practice, was seldom filed other than complaint or appeared place roll. *18 Commission, per Hunt, of rule a by This the’ of Us which pendens, pur- practice chaser is bound from the be must bill, adapted filing served, and a com- to each other. A summons issued filed in the examination of the clerk’s which office, plaint by a can ascertain that claim is made upon purchaser pro- which he intends to are under the necessary perty purchase, lite. In other bind present practice pendente purchaser words, to create the Us which will bind purchaser pendens, must a first there be suit, judgment process, a bill or on file which the claim complaint pro- is set forth. perty far

So as the case arewe now com- shows, no considering in the suit of Mrs. Leitch v. John was ever plaint Kellogg until filed roll filed. judgment

This not could have been than 1864, earlier as the July, on which it date referee, based, bears of that report The time. several advances and the stocks purchases made were defendants to that question time, by prior inwit, May, March, respectively. My conclusion is that the of the defendants are not affected rights in that action. proceedings the instruments executed

By defendants Mrs. title stocks was transferred. legal “For value I do received, sell and transfer, hereby assign

. unto American title, Express Company,” passes legal there no transfer books the bank. although These are the for a words apt conveyance presentí.

record at the is a bank which make formality may question with the but is bank, between vendor important and the vendee. title is without it. v. legal perfect Com. (Kortright Bk., 348; Buff., Wend., Bank Utica Smalley, Cowen R., 770; The Bank Attica v. N. The & T. Bk.,

20 N. Y. R., 50; Gilbert v. I. M. 11C., Manchester, Wend., see also McNiel 626; v Tenth National all Bk., where sup., the authorities are reviewed.)

The transfer to Paulina, wife,

606 et al. v. Wells Leitch Eabl, per Opinion Commission, C. invol In controversy and executed contract. any

complete this' attack this he said an transfer cannot ving It her the absolute transfer was void. absolutely gave It action by title. justified possession legal with that O’Neil, one who should interfere possession. any 27),. 298; Hunt Y., Johnson, 44 N. v. id., v. (Savage thereof. lawful and a transfer to one purchase any making should on this If there question point, .defendant’s certificates the same under transfer and claim pledge in evidence ás part from which is himself, John Kellogg their would attach. title, in remains the title to his wife invalid,

If the transfer is' him to bona him, good and transfer from purchaser fide discussed. heretofore principles trial. think there be a new I should do not 0. The stocks to have question appear Eabl, in his lifetime. to Daniel Kellogg They belonged' belonged to E. who transferred them to the Leitch, executors George In were 1849. executors ordered May, all to transfer the assets the estate of to Daniel Kellogg In Leavenworth, who receiver. 0‘ctober of appointed the same did all transfer the assetsto year they receiver, a certain fund of $25,000^ reserving excepting consisting in the shares of stock Bank, Tompkins County' capital to and shares in the $12,700, stock Bank capital amounting and shares of $7,300, amounting capital Syracuse, Bank, County $5,000, amounting making Onondaga fund the sum of which declared to have been set $25,000, they as and for executors, apart, designated appropriated by them in of Daniel $25,000 the sum of the will given her children. deceased, trust Mrs. Leitch and first of the two banks named are contro- The stocks only action. versy no direction to the investment of

The will contained to invest fund and hence the trustees were $25,000, bound and' it in securities were authorized by law, they' et al. Eajrl, Commission, per stocks, 36 N. Y., Lee, v. no it in invest bank (Diven right was wholly investment id., This 302; Talbot, King assented unless as to the cestuis t/rust, they inoperative que assented ever It they or it. does not adopted appear their served sup in it until it, they adopted acquiesced *20 and John in the action Kellogg against plemental complaint the stock. and dividends never received the wife; they and trustees, they title to the stocks was legal title to and could sell transfer them so as to give perfect of the value and notice them for purchaser taking 3 How. trust. Oliverv. Jur., 977,1,264; Piatt, (Story’sEq. §§ a trustee, U. S. A from with R., purchaser knowledge 333.) the with takes the trust, property purchased charged trust. same trustee,

In and 1858, John executor surviving Kellogg, his and certificates of stock wife, transferred these stocks to and banks, the two thereafter were then issued to This in her name the books of the banks. stocks stood and his wife, valid as John transfer was gave against title to the stocks. He surrendered his as him, against good and to issue of stock caused bank certificates certificates if he and this transfer was as as as valid, him, to her, against and the banks and his stocks had paid money gone in her name and to her. made out had the certificates given them she no value for the took stocks, As, however, paid notice of she took trust, actual or constructive with either cestms trust. them que and held equities subject a blank her, the certificates were she After given gave husband, to her blank transfer, attorney, with power the Bank he the stock of 30th May, pledged" day March, on the 25th the stock day of Syracuse, to the American Bank, County Express of the Tompkins him at the dates. secure loans made to two Company, John were perfectly against Kellogg These good pledges unless were Valid wife, they plaintiffs, and his with notice can some company way charged the express had the same right trust. The company express Leitch et al. Eabl, Commission, per 0. interest as the extent of its and, take stocks pledge, if had it will be as purchased thoroughly protected, pledgee, value and without notice. them for have them, it would If it had thus .taken purchased were them, title to they although absolute equitable legal on the books of bank. (Kortright not transferred McNeil v. 362; Bank Wend., Commercial Buffalo, Bank, Y., Tenth National N. at the time that the There is no company, pretence express either actual notice loans, trust; it had constructive notice is claimed pendency Mrs. and these of the suit of plaintiffs against wife. favor of That suit resulted m interests in and title to the stocks their therein, declaring established and acted It is rule *21 equity, long question. made of on, property actually litigation purchase and with- for a valuable consideration lite, although pendente affects notice, or implied purchaser out any express he will notice, as if he such accordingly manner same in the suit. or decree bound be by every said to rest This rule is presumption" the courts justice attentive to what man is passes and to be founded resides, where he or State sovereignty and trans alienations for otherwise policy; upon public of a suit might title made pendency during fers no end to liti and there would be its whole defeat purpose, v. 406; Ballou, 1 Jur., Murray Eq. (Story’s gation. §§ 2 Ch., v. John. Green 566; 441; Ch., Murray Lylburn, John. v. 4 McLaren, 4 Ch., 38; Cow., John. Hopkins v. Slayter, 1 Jackson v. Wend., 583; v. 667; Murray Blatchford, v. 11 Wend., 442; Parks Wend., 152; Jackson, 7 Andrews, 4 Jackson v. Ch., Losee, 1 Hoff. 153; v. Griffith, Griffith 217, 252; v. White 381; Carpenter, Paige, Ch., Sand. Chan 572; Bucklin, Paige, Comyn’s Digest v. Hayden “ Pendens.” Lis cery, ) of the cases cited that an examination It will seen be 1812. Commission, per Earl, 0.

the rule has been considered a hard one in its very always Iona, for value, to and it has application purchasers only fide been learned tolerated from judges supposed necessity. “ Chancellor Hayden Bucklin, said: This Walworth, rule common-law at their requiring purchasers, peril, take notice of suits in courts of for the pendency justice are about recovery they purchase, although it is should know that really impossible they actually suits such have been has commenced, been considered always a hard and is no means a favorite rule, with the Court of ’ This rule has most Chancery.” been frequently applied of an interest in real estate, so far purchasers very rarely, as I learn from can cases, reported purchasers personal it estate, As real has been since property. long abrogated State, statute in this unless a Us has been filed in pendens As clerk’s office. in this proper personal property, age circulation of country great enterprise rapid- it is more mischief than capable property, working and can claim to be founded on good, hardly necessity pub lic transfers of the policy. By injunctions receivers, sub action can its ject prevented during pendency; aswitnesses, since can be examined actual parties notice, when the action exists, can outstanding equities more readily than But be shown the rule has formerly. existed for centu and we with it in a ries, cannot case dispense where it fairly As it is, rule, hard applicable. however, and. not *22 favorite with the a courts, benefit of it the party claiming must his ease if within and is said-that he it; it clearly bring makes a in his will not assist him court slip proceedings Venders, 460; the mistakaj Sor rectify (3 Sugden rell v. 2 Wms., P. Carpenter, 482.) rule,

When must a suit, within the of the be meaning answer, deemed ? I not until the summons-has been pending served, and the filed. v. 9 Bucklin, complaint (Hayden, Paige, 512, In the office 514.) chancery, performed subpoena aof our1 summons under to the present practice; prior' statute of Anne (4 Anne, 16, ch. was 22), subpoena § Siokels,—Ton. TÜ. 11 al. Commission, per of the Eakl, filed, suit,

issued before the was to be as bill required then as com himself, defendant was considered But after that statute menced from the date of the subpoena. was first and for filed, many bill be purposes required was deemed to be commenced from the suit filing v. bill. Barb. Ch. Webb (Hayden Bucklin, Pr., supra; Pell, Paige, a There so as to bind not, however, could be Us pendens, and the until both the was filed suit, bill strangers of the and such has the uniform served, been holding subpoena it is now said, that time. It has sometimesbeen courts since for the that when learned counsel claimed plaintiffs, and service a suit in was commenced by chancery issuing afterwards, the lis the bill filed pendens a being bf subpoena, was but that then it until the bill filed, was not complete and dated from the service subpoena. related back far I have been able foundation, so claim has its sole This before the case decided learn, anonymous Vernon, 319. The whole in 1 Anne)1 statute of reported is as follows: ease as of that reported “ a filed is Us bill served, pendens against That a subpoena without bill but service subpoena being all persons; but the bill filed, makes no Us filed pendens; being actually comesfrom service subpoena,though the Uspendens term, till the next returnable though party it be the service of a remote; man, upon so otherwise never lives alien his lands and prevent justice might subpoena, to be hard observed counsel court; but being by to bind purchasers, proposed fiction equity some record taken having public some course might "have resort, whereunto calendar kept, purchasers might court, in this lands are in demand they may and see what I am unable mil.” advisare law in cases of Curia at fines. case, ques- decided to see anything this case consideration; and for further was held yet tion some some writers cited elementary *23 has been is no But there rule as claimed. as establishing judges, Leitch et al. Eabl, Commission, per of the case which I have been able find, since reported that one, which down the rule as claimed. lays

Suits now be commenced equity may service alone; the summons it be would hold monstrous to quite that the suit shall be deemed from the time of such pending ” “ as service, so to be constructive notice to all the people of the State of its Mo record is pendency. of the issu- kept and it summons, is ing be filed. It required be issued one several thousand may by any lawyers or one State, of several hundred thousand any persons the State in a and it competent plaintiffs suit, might not be suit, stranger possible degree it learn that had been issued diligence, served; and if did he learn it it, would him no perchance notice give whatever of the subject-matter If, there- litigation.

fore, the mere service of summons should abe lis pendens, so as to it would bind introduce strangers, great uncertainty transactions in embarrassment into reference to personal the rule Us were extended property, provided pendens as claimed for the in this case. I broadly therefore hold there is no Us so as to pendens, constructive give notice to until summons has been strangers, served, and distinctly complaint, stating subject litigation made, the claim has been filed clerk’s specifying proper The rule as thus stated is office. hard and unrea- sufficiently sonable. then, to come,

We case, to when the inquiry of Mrs. Leitch and others suit within was this rule.

wife pending, The summons that suit served was December 1861, 4, is and there no either the proof original supplemental was filed before the was entered, complaint Sep- 12, 1864. both tember have been filed They before, may at least the com- quite probable supplemental filed But been, before. not have they may plaint there is no The stock of the Bank proof upon subject. the stock of the Syracuse pledged May *24 et al. v. Wells Commission, per Eakl, of the 25, Bank March

Tompkins 1864, before County both the suit, I hold the-rule to be, was so as to con- pending give claimed, structive notice. It is the of the part plaintiffs, in that this defect their was not out on the proof pointed trial. It not for was the defendant to do this. It necessary was on the to show actual incumbent or constructive plaintiff the their defendant. If relied notice of equities they that notice, this constructive should have shown upon they It was filed before the stocks were the complaint pledged. that that the claimed not plaintiffs complaint does appear and it that stocks, filed before be was pledge may the literal action, relied upon pendency they summons, constructive notice. service give simple was in roll, action, offered evi- When the judgment on the that it was not the defendant dence, objected, ground had and that it thereof, no notice action, party therein; bound therefore, adjudication not, was of law distinct exception findings was there was concluded by company judg- court, express took the stocks because action, pledge in that they ment before Hence the its question properly pendency. during was not, that the must hold express company and we us, at with notice of the trial, charged produced proof action, claims of that equitable pendency the stocks question. the Bank of bore stock Syracuse The certificate and was 30, 1862, May long pledged date August that the com- supplemental' can any pretence there before does contain complaint "filed. original plaint this any to show way allegations sufficient or that $25,000, trust fund as portion set apart thereto. claim action any equitable in -that the plaintiffs no Us also, there was this reason stock, toas Hence, the same time it took at the company express jpendens in pledge. form unaffected still broader ground, have

But I base must also I which defect proof, of pleading Leitch et al. v. Wells *25 Eabl, Commission, per Opinion are Stocks articles adverse to the plaintiffs. conclusion my of business day in them every commerce, and dealings of other species in value the any far dealings the year surpass hand com- hand to from They pass property. personal or bills exchange. *26 James M. al., Appellants, James Calkins, Smith,

Respondent. debt, partnership, one member of pay Where a in order to his individual promissory name, makes his note and it in the firm indorses knowledge copartners, or consent of his and the creditor with know- ledge note, of the facts and in the firm trans- receives order bind holder, fers it maturity guilty before to a Iona is of a creditor fide firm; fraud and is liable the fraud is it is therefor. But not only upon those did The cause who not consent to indorsement. firm, arising part although action therefrom no of the assets of the is paid pass assets, the note has been out of such and title thereto does firm, by general a nor assignment of all the and effects of the conveyed by assignment interest therein one of is made partnership parties injured right of his and interest in the assets. (Lott, Ghat, 0., dissenting.) 0., Ch. joint injured partners injury a fraud does not work Such which damage in a each is in can unite common-law action. sustained proportion partnership, bring separate to his interest in the and he must (Eabl, 0.) suit to recover it. brought by plaintiffs, they joint in an action two fail to establish a Where separate interest, cause of action in favor of one established, power, Code,to give judg- the court has under 274 of the § other, in favor of one and ment but it is not bound so to do, judgment against is not and a both erroneous. term, 10, 1872; May (Argued January decided Appeal from the of the General Term of the district, Court Supreme eighth judicial judg- affirming in favor of entered the decision of the defendant, ment like notes transactions, mercial negotiable form ways are many sold They pledged, of credit. basis National v. Tenth the case Since decision of of McNeil with blank stock, assign above certificates of Bank, cited, must be attached, nearly ments powers attorney construc The doctrine of as commercial1paper. .negotiable to such been lis has never applied tive notice yet pendens It could This must have limitations. doctrine its. property. to nor to bills commercial not be applied ordinary paper, bonds to corporate payable nor lading, government find that it has ever been I do not Indeed, applied, bearer. think it to be any and I do not ought applied, does not commerce. Public policy articles of ordinary be thus On that it should applied. contrary, require work mischief such would its application great embarrassments. As I have before and lead to stated, great to real estate, has been rarely applied generally I have in mind but one of personal property species .j it has been are where doubtless (there others) applied case and that is the caseof v. Lylburn Murray property, personal held to a where it was bond Ch., 441), apply Johnson’s (2 case, chancellor, In that the learned however, and mortgage. “ as the the trust cash estate, If he proceeds possess says: due, or movable perhaps personal paper negotiable horses, I am not cattle, etc., such as prepared grain, property, so far as to the rule is to be carried affect sales. to say commercial would limitation dealings require safety are not the but bonds rule; mortgages subject And the chancellor commerce.” ordinary language Seward in Parks v Johnson with Senator is cited approval by Wend., 458). (11 reached the therefore, conclusion the American I have, Calkins et al. Smith. Statement of case. at the time the stocks were Express was, Company pledged, unaffected with notice of hence plaintiffs’ equities, its claim as them. pledgee good trial must and new he reversed granted, cost to abide event. All concur. reversed. Judgment