Leitch v. Wells

The stock in question stood in the name of Paulina W. Kellogg, and the certificates issued by the banks of her title thereto were evidence of its absolute ownership by her.

There was nothing in them, or connected therewith, to show or indicate a trust in favor of any other person. Their production to the express company, with a power of attorney signed by her in the usual form for the transfer of stock in incorporated companies, warranted and justified it in making the loans it did on the assumption of such ownership.

The assignment of those certificates and the delivery thereof to the company, with the said powers of attorney, vested the legal title to the stock in the company.

A transfer on the books oí the banks was not necessary for

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

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

It is, however, claimed that the defendant’s title is affected by the judgment in the suit of Catharine K. Lietch and the plaintiffs in this action against John Kellogg and Paulina W. Kellogg, referred to in the complaint, on the ground that the stock in controversy was purchased during its pendency.

That claim or position is not available.

The facts alleged in the complaint do not show nor is it found by the judge who tried this action that a lis fendens was created by that suit.

The only allegation in reference to it is “ that on the 29th day of November, 1861, the said Catharine K. Leitch and the plaintiffs in this suit commenced their action against the said John Kellogg and Paulina W. Kellogg, and duly impleaded them in respect of the said stocks, etc.” There is no averment or any statement showing when the complaint therein was filed, and, by reference to the judgment record, it appears from the summons that it was not filed when that was served, and it is shown by the complaint itself that it was not verified till the 12th of March, 1862. The commencement of the action by the service of the summons did not create a lis

It may also be stated, in this connection, that the complaint, after stating the claims of title by the defendant to the stock under the transfer of the scrip or certificates of stock, impeaches its validity on the sole ground that “ neither the said John Kellogg nor Paulina W. Kellogg had any right or title thereto, and therefore could confer no right or title thereto to said Express company,” and that the said stock was then the property of the plaintiffs; and the proceedings and judgment in that •action appear to be stated as part of the plaintiffs’ title, and not for the purpose of charging that the Express company was bound by the judgment. It is, however, unnecessary to pursue the inquiry. It is sufficient to say that the allegations in- the complaint and the findings of the court are not sufficient to charge the company with constructive notice of the plaintiffs’ rights or title, and: it is expressly found that it had no actual knowledge of the pendency of the suit, or of any claim by the plaintiffs to the stock in question, or that John Kellogg was an executor and'trustee under the will of Daniel Kellog, deceased.

■ Having arrived at this conclusion, it is unnecessary to consider whether-the allegations in the complaint in that suit are sufficiently specific to charge third persons with notice of the plaintiffs’ claim.

The judgment must, on the ground stated, be reversed and a hew- trial ordered, costs to abide the event.

In August, 1858, John Kellogg transferred to his- wife-, Paulina W. Kellogg, seventy-three shares of the capital stock of the Bank of Syracuse. In May, 1859, John Kellogg transferred in like manner to his wife 107 shares of the capital stock of the Tompkins County Bank. The trans

The defendants afterward advanced $21,000 upon the security of a transfer of these certificates, and an authority to’ transfer them to themselves on the books of the banks,viz., on the 30th of May, 1862, $11,000 upon the stocks first named, and on the 25th of March, 1864, $10,000 on the stock lastly described. The plaintiffs claim that the' defendants obtained no title to these stocks, for the reason that John Kellogg held the same as trustee under the will of Daniel Kellogg for their mother and themselves, and that the transfers of the same by John Kellogg were' in violation of his duty as trusteee, and that in law the defendants. had notice of the interest of the plaintiffs in' the stocks. John Kellogg was, also, an executor undér the will of Daniel Kellogg. An executor, it is not denied,may make a transfer of personal property which will give ar good title to a bona fide purchaser, although the transfer is" made in violation of the duty of the executor. The exécutor is the owner of the personal property of the testator; the absolute title vests in him, and he posesses the jus disjponendv in its full force. The honest purchaser is under no duty tp' see that the moneys are faithfully applied by the executor. (Bogert v. Hertel, 4 Hill, 492 ; 2 Wms. Exrs., 838,- 841.) Assuming it to be a trust, the argument, if I correctly understand it, in addition to the point of notice, is this, that the trust became executed, the absolute ownership vested in' Mrs. Leitch and her Children, and consequently John Kellogg had no title whatever, and none could be transferred by him. Iff this view, the question was presented prominently, was’ this* specific stock held by John Kellogg as trust property under the will of Daniel Kellogg ? It amounts to a claim that the stock is to- be dealt with as if Daniel Kellogg, in creating the trust referred to, had, by his will, set apart and devoted this' stock to the satisfaction of that trust.

Daniel Kellogg died in 1836, leaving a very large éstate;

The testator made a provision in the same language for his daughter, Mrs. Converse, and also for his unmarried daughter, Sally Maria Kellogg.

The executors took charge of all of the estate of Mr. Kellogg, and there is no evidence of any interference with them Until the year 1848. In that year a bill was filed by Augustus Converse, as administrator of his wife, a daughter of Daniel Kellogg, the daughter having died in January of that year. After setting out the will of Daniel Kellogg, the complaint alleged, among other things, that the executors had taken upon themselves the execution of the will, that the personal estate was of the value of $450,000 dollars, and claimed to recover the distributive share of his wife in the

I agree with the learned judge, who delivered the opinion in the court below, that a fair test to determine whether these stocks became specifically devoted to the satisfaction of this trust is this, if the banks had failed and the stocks become

In determining this question, certain further facts are to be considered:

1. That no order of the court directed this exception or reservation. The order was general, that the executors convey all the estate qf Mr. Kellogg, in their hands, without qualification or limitation. The exception was voluntary, and the recital is the voluntary declaration of thg executors.

2. There is no judicial recognition of this exception. There is no evidence that the document in which the statement is made was presented to or sanctioned by the court.

3. D. Kellogg Leitch, George F. Leitch and David H., the plaintiffs in the present suit, were neither, of them parties to the Converse suit in which this action occurred. This exception was made in an instrument execute^ in October, 1850. At that time, D. Kellogg was of the age of fifteen; George F. of the age of seven, and David H. of the age of ten years.

4. The interest of these children in the $25,000 was a vested estate. Although they could not enjoy the fruits during the life of their mqther, the title vested at once upon the birth of each, and the estate in the infant was as perfect, in law as if there were no intermediate life interest,.

■5. At that time, the estate of Daniel Kellogg owned 12.Í shares of the Tompkins Bank stock, and ninety-nine shares, of the Syracuse stock, and 105 shares of the Onondaga Bank stock, of the total value of $33,100, all of which were transferred by John Kellogg to Paulina W. Kellogg. What became of the remaining twenty shares of the Tompkins Bank stock, and the remaining twenty-six shares, of the Onondaga Bank stock, does not appear. Whether these remaining shares are supposed to be impressed also with- the trust—whether they have been applied to the discharge of the debts, or other trusts of the estate, or whether they have been squandered, does not appear. The

It is my judgment that there was never a legal appropriation of the stocks in question to the satisfaction of this trust. They remained in the hands of the executors as assets in their charge.

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

By the judgment upon the report of the referee in the suit of D. Kellogg Leitch et al. v. John Kellogg and Paulina Kellogg, dated July 22, 1864, it was adjudged that the stocks in question were impressed with the trust in favor of Mrs. Kellogg and her children, and that the transfer to Paulina Kellogg was void; that Mrs. Leitch and her children were entitled to all the dividends previously made upon the stocks. By the original complaint made in that suit, verified March 12, 1862, it was charged that John Kellogg had received into his individual possession 300 shares of the capital stock of the Bank of Syracuse, value $100 per share; 100 shares of Onondaga Co. Bank, value fifty dollars a share; 1,200 shares of Auburn Bank; 127 shares of the Tompkins

Unlike trustees, who must act unitedly, one executor may effectually bind or dispose of the assets of the estate by his single act. (Hill on Trustees, 306 [466] ; 2 Wms. Exvs., 620.)

The stocks in question were transferred by John Kellogg to Paulina W. Kellogg. By her they were transferred to the defendants, who advanced their money on the faith of the security, without knowledge that John Kellogg was executor, that Paulina was his wife, that there was any litigation or question from any source respecting it. Ordinarily this would give the defendants a right to hold the stocks to the amount of their advance. The executor has the right to sell and transfer, and one who buys of him in good faith, and pays in ■money the price agreed upon, is not responsible for the application of the purchase-money. (Authorities supra.) The same rule applies to one who loans money on the security of the property. (McNeil v. Tenth National Bank, 46 N. Y. R, 325.)

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

It would then be the case of property held by an executor, and a claim for a legacy or a debt against the estate generally. This does not prevent a transfer of any portion of the estate to one aware of these facts. If it exists in the case, the question of lis pendens is an embarrassing one.

There is no doubt of the general rule, that a purchase pen

■This relaxation of a rigorous rule applies to real estate only, and, as to personal property, the rule remains as at the common law. It is conceded to be a harsh rule, and one that sometimes operates unjustly. It was based, no doubt, upon the theory that the register’s office, like the recording office now, was open to examination, and that the proper attention, in looking there, would protect the purchaser from injury^ Hence it was established, as a part of the rule, that for this purpose a suit was not to be deemed as commenced until the bill was actually filed. A subpoena was the actual commencement of the proceeding, but, for the purpose of charging one not a party to the suit with notice of the proceeding, the suit was deemed to have been a suit commenced only from the time of the bill filed. Thus in Murray v. Ballou ( 1 Johns. Ch., 566 ), cited in the opinion below, Chancellor Kent says: “ Admitting that Ballou had no knowledge, in fact, of the suit of Mrs. Oreen against Winter, he is nevertheless chargeable with legal or constructive notice, so as to render his purchase subject to the event of that suit. The established rule is, that a Us pendens, duly prosecuted, and not collusive, is notice to a purchaser, so as to affect and bind his interest by the decree; and the Us pendens begins from the service of the subpoena after the bill is filed.

The chancellor says, this is no more than an adoption of the rule of the common law, where, if the defendant aliens after pendency of the writ, the judgment in the real action

In Hayden v. Bucklin (9 Paige R., 513), the chancellor says: “The only question, therefore, for consideration is, whether the mere issuing of the subpoena is to be deemed a Us pendens in this court, so as to affect the validity of a transfer of the subject-matter of the litigation here as a purchaser pendente lite." It was held that it was not. There the transfer had been made intermediate the issuing of the subpoena and its service. (See also Hopkins v. McLaren, 4 Cowen R., 667.)

By the statute, 4 Anne (cited Hayden v. Bucklin, supra), it was enacted that no subpoena should be issued until bill filed, save in excepted cases. In other words, the filing of the bill was the commencement of the suit. Such was, for a

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

By the practice in existence in this State, when the action of Mrs. Leitch against John Kellogg was commenced, it was not required that the complaint should be filed, nor even served, at the commencement of the action. The suit might be commenced by summons alone served upon the defendants, or by summons and complaint served upon the defendants.

In neither case was it required by law or by any rule of court that the complaint should be filed at the commencement of the suit. (Code, §§ 127, 128, 130, as amended in 1849.) When the judgment roll was made up and filed, it was required that the complaint should be therein incorporated as a part of the record. (Code, § 281.) This was indispensable to the making up of the record. By section 416, pleadings are required to be filed in ten days after service, or the opposite party might compel such filing on pain of its abandonment; this section was not imperative. If not filed, the opposite party Could compel it to be done, or that the pleadings should be abandoned. As a matter of fact in practice, I believe the complaint was seldom filed or appeared in any other place than the judgment roll.

So far as the case we are now considering shows, no complaint in the suit of Mrs. Leitch v. John Kellogg was ever filed until the judgment roll was filed.

This could not have been earlier than July, 1864, as the report of the referee, on which it is based, bears date of that time. The several advances and purchases upon the stocks in question were made by the defendants prior to that time, to wit, in May, 1862, and in March, 1864, respectively. My conclusion is that the rights of the defendants are not affected by the proceedings or by the judgment in that action.

By the instruments executed to the defendants by Mrs. Kellogg, the legal title to the stocks was transferred.

. “For value received, I do hereby transfer, sell and assign unto the American Express Company,” passes the legal title, although there be no transfer on the books of the bank. These are the apt words for a conveyance in presentí. The record at the bank is a formality which may make question with the bank, but is not important as between the vendor and the vendee.

The legal title is perfect without it. (Kortright v. Com. Bk., Buff., 22 Wend., 348 ; Bank of Utica v. Smalley, 2 Cowen R., 770; The Bank of Attica v. The N. & T. Bk., 20 N. Y. R., 50; Gilbert v. Manchester, I. M. C., 11 Wend., 626 ; see also McNiel v Tenth National Bk., sup., where all the authorities are reviewed.)

The transfer by John Kellogg to Paulina, his wife, was a

If the transfer to his wife is invalid, the title remains in him, and transfer from him to a bona fide purchaser is' good upon the principles heretofore discussed.

I think there should be a new trial.

The stocks in question do not appear to have belonged' to Daniel Kellogg in his lifetime. They belonged to George E. Leitch, who transferred them to the executors in 1847 and 1849. In May, 1850, the executors were ordered to transfer all the assets of the estate of Daniel Kellogg to Leavenworth, who was appointed receiver. In 0‘ctober of the same year they did transfer all the assets to the receiver, excepting and reserving a certain fund of $25,000^ consisting of shares of capital stock in the Tompkins County' Bank, amounting to $12,700, and shares of capital stock in the Bank of Syracuse, amounting to $7,300, and shares of capital stock in the Onondaga County Bank, amounting to $5,000, making the sum of $25,000, which fund they declared to have been set apart, designated and appropriated by the executors, as and for the sum of $25,000 given to them in and by the will of Daniel Kellogg, deceased, in trust for Mrs. Leitch and her children. The stocks of the two banks first named only are in controversy in this action.

The will contained no direction as to the investment of the fund of $25,000, and hence the trustees were bound to invest it in such securities as were authorized by law, and' they' had

The legal title to the stocks was in the trustees, and they could sell and transfer them so as to give a perfect title to a purchaser taking them for value and without notice of the trust. (Story’s Eq. Jur., §§ 977,1,264; Oliver v. Piatt, 3 How. U. S. R., 333.) A purchaser from a trustee, with knowledge of the trust, takes the property purchased charged with the same trust.

In 1858, John Kellogg, the surviving executor and trustee, transferred these stocks to his wife, and certificates of stock were then issued to her by the two banks, and thereafter the stocks stood in her name upon the books of the banks. This transfer was valid as against John Kellogg, and gave his wife, as against him, good title to the stocks. He surrendered his certificates of stock and caused the bank to issue certificates to her, and this transfer was as valid, as against him, as if he had gone to the banks and paid his money for the stocks and had the certificates made out in her name and given to her. As, however, she paid no value for the stocks, and took them with either actual or constructive notice of the trust, she took and held them subject to the equities of the cestms que trust.

After the certificates were given to her, she gave a blank transfer, with blank power of attorney, to her husband, and on the 30th day of May, 1862, he pledged" the stock of the Bank of Syracuse, and on the 25th day of March, 1864, the stock of the Tompkins County Bank, to the American Express Company, to secure loans made to him at the two dates. These pledges were perfectly good as against John Kellogg and his wife, and they were Valid against the plaintiffs, unless the express company can in some way be charged with notice of the trust. The express company had the same right to

If it had thus purchased them, it would have .taken the absolute legal and equitable title to them, although they were not transferred on the books of the bank. (Kortright v. Commercial Bank of Buffalo, 22 Wend., 362 ; McNeil v. Tenth National Bank, 46 N. Y., 325 .)

There is no pretence that the express company, at the time of either of the loans, had any actual notice of the trust; but it is claimed that it had constructive notice by the pendency of the suit of Mrs. Leitch and these plaintiffs against John Kellogg and his wife.

That suit resulted in a judgment in favor of the plaintiffs therein, declaring their interests in and title to the stocks m question. It is a rule in equity, long established and acted on, that a purchase made of property actually in litigation pendente lite, although for a valuable consideration and without any express or implied notice, affects the purchaser in the same manner as if he had such notice, and he will accordingly be bound by the judgment or decree in the suit.

This rule is said to rest upon the presumption" that every man is attentive to what passes in the courts of justice of the State or sovereignty where he resides, and to be founded upon public policy; for otherwise alienations and transfers of title made during the pendency of a suit might defeat its whole purpose, and there would be no end to litigation. (Story’s Eq. Jur., §§ 405, 406; Murray v. Ballou, 1 John. Ch., 566; Murray v. Lylburn, 2 John. Ch., 441; Green v. Slayter, 4 John. Ch., 38; Hopkins v. McLaren, 4 Cow., 667 ; Murray v. Blatchford, 1 Wend., 583 ; Jackson v. Andrews, 7 Wend., 152 ; Parks v. Jackson, 11 Wend., 442 ; Griffith v. Griffith, 1 Hoff. Ch., 153 ; Jackson v. Losee, 4 Sand. Ch., 381 ; White v. Carpenter, 2 Paige, 217, 252; Hayden v. Bucklin, 9 Paige, 572; Comyn’s Digest Chancery, “ Lis Pendens.” )

It will be seen by an examination of the cases cited that

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

There could not, however, be a Us pendens, so as to bind strangers to the suit, until both the bill was filed and the subpoena served, and such has been the uniform holding of the courts since that time. It has sometimes been said, and it is now claimed by the learned counsel for the plaintiffs, that when a suit in chancery was commenced by the issuing and service bf a subpoena, the bill being filed afterwards, the lis pendens was not complete until the bill was filed, but that then it related back and dated from the service of the subpoena. This claim has its sole foundation, so far as I have been able to learn, upon an anonymous case decided in 1685, before the statute of Anne)1 and reported in 1 Vernon, 319. The whole of that ease as reported is as follows:

“ That a subpoena served, bill filed is a Us pendens against all persons; but the service of a subpoena without a bill being actually filed makes no Us pendens; but the bill being filed, the Us pendens comes from the service of the subpoena, though it be not returnable till the next term, and though the party lives never so remote; otherwise a man, upon the service of a subpoena, might alien his lands and prevent the justice of the court; but that being by the counsel observed to be a hard fiction in equity to bind purchasers, it was proposed that some course might be taken by having some public record or calendar kept, whereunto purchasers might "have resort, and see what lands are in demand in this court, as they may at law in cases of fines. Curia advisare mil.” I am unable to see that anything was decided by this case, but the question was held for further consideration; and yet this case has been cited by some elementary writers and by some judges, as establishing the rule as claimed. But there is no

Suits in equity may now be commenced by the service of the summons alone; but it would be quite monstrous to hold that the suit shall be deemed pending from the time of such service, so as to be “ constructive notice ” to all the people of the State of its pendency. Mo record is kept of the issuing of the summons, and it is not required to be filed. It may be issued by any one of several thousand lawyers in the State, or by any one of several hundred thousand persons in the State competent to be plaintiffs in a suit, and it might not be possible for a stranger to the suit, by any degree of diligence, to learn that it had been issued or served; and if he did perchance learn of it, it would give him no notice whatever of the subject-matter of the litigation. If, therefore, the mere service of a summons should be a lis pendens, so as to bind strangers, it would introduce great uncertainty and embarrassment into transactions in reference to personal property, provided the rule of Us pendens were extended as broadly as claimed for the plaintiffs in this case. I therefore hold that there is no Us pendens, so as to give constructive notice to strangers, until a summons has been served, and a complaint, distinctly stating the subject of the litigation and specifying the claim made, has been filed in the proper clerk’s office. The rule as thus stated is sufficiently hard and unreasonable.

We come, then, to the inquiry in this case, as to when the suit of Mrs. Leitch and others against John Kellogg and wife was pending, within this rule.

The summons in that suit was served December 4, 1861, and there is no proof that either the original or supplemental complaint was filed before the judgment was entered, September 12, 1864. They may both have been filed before, and it is quite probable that at least the supplemental complaint was filed before. But they may not have been, and there is no proof upon the subject. The stock of the Bank of Syracuse was pledged May 30, 1862, and the stock of the

The certificate of the stock of the Bank of Syracuse bore date August 2, 1858, and was pledged May 30, 1862, long before there can be any pretence that the supplemental' complaint was "filed. The original complaint does not contain sufficient allegations to show that this stock was in any way set apart as a portion of the trust fund of $25,000, or that the plaintiffs in -that action had any equitable claim thereto. Hence, as to this stock, for this reason also, there was no Us jpendens as to the express company at the time it took the same in pledge.

But I have a still broader ground, unaffected by any form of pleading or defect in proof, upon which I must also base

Since the decision of the case of McNeil v. Tenth National Bank, above cited, certificates of stock, with blank assignments and powers of attorney attached, must be nearly as .negotiable as commercial1 paper. The doctrine of constructive notice by lis pendens has never yet been applied to such property. This doctrine must have its. limitations. It could not be applied to ordinary commercial paper, nor to bills of lading, nor to government or corporate bonds payable to bearer. Indeed, I do not find that it has ever been applied, and I do not think it ought to be applied, to any of the articles of ordinary commerce. Public policy does not require that it should be thus applied. On the contrary, its application to such property would work great mischief and lead to great embarrassments. As I have before stated, it has generally been applied to real estate, and but rarely to any species of personal property .j I have in mind but one case (there are doubtless others) where it has been applied to personal property, and that is the case of Murray v. Lylburn (2 Johnson’s Ch., 441), where it was held to apply to a bond and mortgage. In that case, the learned chancellor, however, says: “ If he possess cash as the proceeds of the trust estate, or negotiable paper not due, or perhaps movable personal property, such as horses, cattle, grain, etc., I am not prepared to say the rule is to be carried so far as to affect such sales. The safety of commercial dealings would require a limitation of the rule; but bonds and mortgages are not the subject of ordinary commerce.” And this language of the chancellor is cited with approval by Senator Seward in Parks v Johnson ( 11 Wend., 458 ).

I have, therefore, reached the conclusion that the American

The judgment must he reversed and new trial granted, cost to abide event.

All concur.

Judgment reversed.