author: Duer J.

text:
    David Leavitt, President of the American Exchange Bank, v. Henry Fisher, Administrator, &c. of Arthur G. Miller, deceased, and Charles Gould.
    The holder of a certificate of shares of stock, accompanied by an irrevocable power of attorney to transfer them, is the apparent owner, although the power may be in blank for the name of the attorney, and when he is a holder for value, without notice, his title cannot be impeached.
    Such a power is not limited to the person to whom it is first delivered, but enures to the benefit of every subsequent londjide holder for value, each being entitled for the protection of his own interests to fill up the blanks and execute the power.
    The power is not exhausted when money has been raised on its transfer, nor revoked by the death of the party who gave it, but continues in force until executed by a transfer of the shares on the books of the Company, by which the certificate was issued, through whatever number of hands the certificate and power since their first delivery may have passed.
    A transfer of shares to A B., as the President of a banking association, is not void under that provision in the Revised Statutes, (1 R. S., § 7, p. 591,) which requires every assignment to a moneyed corporation to be made to the corporation directly by name. It is rendered valid by the provisions of the general banking law.
    When a judgment of interpleader directs a suit between A and B. by name, all persons may be made parties who claim an interest in the property which is in dispute, whose' presence is necessary to a complete determination of the controversy.
    The objection that a complaint contains an excess of parties may be taken by demurrer or answer, and when not so taken is deemed to be waived.
    A defendant who sets up a claim adverse to that of a co-defendant, is not bound to serve a copy of his answer upon such co-defendant if the title by which he claim's is set forth in the complaint.
    (Before Doer, Campbell, and Hoffman, J. J.)
    June 12;
    July 1, 1854.
    Appeal by the defendant Eisher from a judgment at special term.
    The action was brought in pursuance of a former judgment of the court, made in an action brought by John Adams, President of the Eulton Bank, against the plaintiff Leavitt, and the defendant Eisher, to compel them to determine in a suit between themselves the right to a transfer and certificate of sixty shares of the capital stock of the Eulton Bank, to which each of them claimed to be legally entitled. The judgment in this action in favor of the plaintiff was rendered, on the 30th of April, 1852, and after directing that the Eulton Bank should transfer and issue a certificate for the sixty shares in question to the Clerk of this Court, and should also pay to the Clerk the amount of all dividends thereon which had accrued since the 2d of November, 1849, out of which the plaintiff should be paid by the Clerk his taxable costs, &c., it ordered and adjudged as follows:
    “ That the defendant, David Leavitt, President of the American Exchange Bank, shall within twenty days after the entry of this judgment, or service of a copy thereof, commence an action against the defendant, Henry Eisher, administrator of the goods, chattels, and credits which were of Arthur Gr. Miller, deceased, for, and demanding of the Clerk of this Court an assignment and transfer of said sixty shares of the capital stock of the Eulton Bank in the City of New York, and all dividends which have been or shall be received by said Clerk, deducting such payment as is above ordered to be made by him for the plaintiff’s costs in this action: and that if said David Leavitt, President of the American Exchange Bank, shall refuse or neglect to commence such action within the time aforesaid, that said defendant, Henry Eisher, administrator as aforesaid, shall be at liberty to commence such action as plaintiff. And that in the action so to be commenced by either of the defendants, the defendant therein shall be at full liberty to claim said sixty shares of capital stock, and the dividend thereon, to the end that a full decision and judgment may be had between the parties defendant in this action as to which of them is entitled thereto.”
    The complaint in this action, making Gould as well as Fisher a defendant, was accordingly filed and served by the plaintiff Leavitt within the period limited. The complaint sets forth the following facts as entitling the plaintiff to the judgment demanded : That the American Exchange Bank is a banking association in the city of New York, organized as such under the General Banking Act, and that the Fulton Bank was a similar association in the same city. That on'the 4th of October, 1848, the defendant Gould applied to the American Exchange Bank for a loan of $1,800, upon a pledge or hypothecation of sixty shares of the capital stock of the Fulton Bank. That the loan requested was accordingly made to him upon the terms expressed in a note in writing, commonly called a stock note, which he then signed and delivered to the Bank, and is of the tenor and effect following:
    $1,800. New Yobk, October 4, 1848.
    On demand, I promise to pay John I. Fisk, Esq., Cashier, or order, eighteen hundred dollars, for value received, with interest at the rate of seven per cent, per annum, having deposited with him as collateral security sixty shares of the capital stock of the-Fulton Bank in the city of New York; and in case this note shall not be paid when due, I hereby give the said payee authority to sell the said stock, or any part thereof, for my account; on the maturity of this note, or at any time thereafter, at the Brokers’-' Board, or at public or private sale, at his discretion,' without ad1-vertising the same or giving me any notice, and to apply-so much; of the proceeds of said stock to the payment of this note-as-maybe necessary to pay the same, with all interest due thereon, and1 also to the payment of all expenses attending the sale of the said1 stock; and in case the proceeds of the said stock shall not cover-the principal, interest and expenses, I hold myself boiind to pay-the balance.
    Chas, Gould.-

      That Gould at the same time delivered to the Bank an assignment, or transfer, of the said sixty shares, commonly called an irrevocable stock power, executed by Arthur G. Miller, deceased, under his hand and seal, in the words and to the effect following:
    Know all men by these presents, that I, Arthur G. Miller, of the city of New York, for value received, have bargained, sold, assigned and transferred, and by these presents do bargain, sell, assign, and transfer, unto ' sixty shares of the capital stock standing in my name on the books of the Eulton Bank, and do hereby constitute and appoint my true and lawful attorney, irrevocable for me and in my name and stead, but to use, to sell, assign, transfer, and set over all or any part of the said stock, and for that purpose to make and execute all necessary acts of assignment and transfer, and one or more persons to substitute with like full power, hereby ratifying and confirming all that my said attorney, or his substitute or substitutes, shall lawfully do by virtue hereof.
    In witness whereof I have hereunto set my hand and seal, the 12th day of September, 1848.
    Aethue G. Miller, [l; s.]
    Sealed and delivered in ) the presence of )
    G. Mashing Tract.
    That on the 2d of November,' 1849, the plaintiff, as President of the American Exchange Bank, delivered to Charles Gould the above assignment to enable him to transfer, the aforesaid'sixty shares on the books of the Eulton Bank to the American Exchange Bank; that Gould made a transfer of the shares accordingly to the plaintiff, as President of the American Exchange Bank, and at the same time surrendered to the Eulton Bank the original certificate of the shares issued to A. G. Miller; that he then demanded from the Eulton Bank for and on behalf of the American Exchange. Bank a new certificate for the shares, which the Eul-ton Bank wrongfully refused to give; that by the delivery of the said assignment and stock power to the American Exchange Bank, under the circumstances aboye mentioned, the bank acquired the rights of a bond fide holder for value of the aforesaid sixty shares, and that Gould also acquired the possession of the assignment and stock power under circumstances that gave to him all the rights of a bond fide holder for value of the shares, and entitled him to make a transfer and■ delivery thereof to the American Exchange Bank, and that he gave value for the shares. The complaint then set forth the proceedings in the former action, and that, in pursuance of the judgment rendered therein, a certificate for the sixty shares had been issued and delivered by the Fulton Bank to the clerk of this court, to whom the dividends that had accrued subsequent to the 2d of November, 1849, had also been paid. It then demanded judgment for a transfer of the shares and the payment of the dividends so held by the clerk to the American Exchange Bank, or “ for such further or other relief as might be proper in the premises.”
    The answer of the defendant Fisher took issue, in the form allowed by the Code, of the want of sufficient knowledge or information, on the main allegations in the complaint, and denied positively that Gould acquired possession of the assignment and stock power under circumstances entitling him to the rights of a bond fide holder for value of the sixty shares of stock, or to make a transfer and delivery thereof to the American Exchange Bank, or that he gave any value therefor. The answer then averred, that, on the 1st of November, 1849, Arthur G. Miller was, and for five years previously had been, the holder and owner of sixty shares of the capital stock of the Fulton Bank; that his name as such owner stood upon the books of the bank, and that a certificate for the shares was issued to him on or about the 1st of March, 1844; that he held the stock subject to the articles of association of the bank, which provided that every transfer, to be valid, should be made on books for registry and transfer of shares, to be kept in the bank, and should be signed by the shareholder or his attorney duly authorized in writing.
    The defendant in his answer, further averred upon information and belief, that A. G. Miller in his lifetime, and some time in the year 1848, signed and sealed a blank assignment and power t'o-transfer stock; that this assignment was not dated nor filled up when signed by Miller, but was blank in the date, in the name of the assignee, of the attorney, and in the number of shares; that the Fulton Bank had no notice of such power and assignment until the morning of the 2d of November, 1849 ; and that Miller had not in person or by attorney made any transfer of the shares at the time of his death.
    That some time in the year 1848, Miller delivered to one G-. Manning Tracy the blank assignment and power aforesaid; that said Tracy and Gould were then and bad previously been on very intimate and confidential terms with Miller, and had charge, one or both of them, of most of his property of the like nature that the said stock was not sold, nor was agreed to be sold, by Miller to Tracy, nor was it sold, or intended to be sold, by Miller to any other person; that Miller received no consideration for the delivery of the assignment and power from Tracy or any other person; and never in any way parted with his ownership of the stock. That Tracy, after obtaining possession of the assignment and power, used it in borrowing money of R. H. Nevins & Co., or some other banking-house, for his own benefit, or for the benefit of some person other than Miller, no part of the money so borrowed by him having been paid to, or applied,,directly or indirectly, to the use of Miller. That Tracy afterwards paid off the loan he had made, and received back the blank assignment and power; that Gould then obtained possession of the assignment and power, without giving any value or consideration therefor, and borrowed thereon and on other securities the sum of $1,800, in his own name and for his own use and benefit; that he did not pay the money so borrowed or any part thereof to Miller, nor was the same or any part thereof applied in any way to the use of Miller; but was all placed to the credit of Tracy by Gould, in liquidation of an antecedent debt or liability of Tracy to him, or was pretended to be so disposed of; that all these pledges of the stock were without the, knowledge, consent, or authority of Miller, and as to him were therefore fraudulent.
    The defendant then averred that Gould, at the time of the pledge to and loan by the American Exchange Bank, pledged other securities to the bank to an amount beyond his entire indebtedness, which securities were and are more than sufficient-to discharge all the claims of the bank upon Gould, including the loan of $1,800, without resort to the stock of Miller;

      That Miller died on the evening of the 1st of November, 1849, and that his death was known to Gould early the next morning; that on that morning, and before any information of the death of Miller had, or could have reached the officers of the Fulton Bank, Gould obtained from the plaintiff the said blank power and assignment, filled up the blanks therein, inserting the name of the plaintiff, president, and as assignee, his own name as attorney, the 12th of September, 1848 or 1849 as the date, and then went to the Fulton Bank, and in the name of Miller, and pretending to be his attorney, executed a transfer of the sixty shares, and attempted to obtain a new certificate; that the defendant, having information of this attempt, gave notice to the Fulton Bank on the 3d of September of the death of Miller, and of the claim of his representatives to the stock in question, and forbade the issue of a new certificaté therefor to the plaintiff.
    The answer then set forth the appointment of the defendant as administrator of Miller, admitted the allegations in the complaint relating to the former action, and insisted that upon the facts before stated, by reason of the death of Miller before the execution of the power, the American Exchange Bank had no right or title to the shares, of stock in question, but that the same, as part of the assets of the estate of Miller, belonged wholly to the defendant.
    The defendant then said that he was advised, and insisted that if the court should decide that the plaintiff was entitled to the certificate of the shares, yet, as the stock was only a security for the repayment-of the sum of $1,800 borrowed from the American Exchange Bank, neither the plaintiff nor Gould could have any claim upon it beyond the amount then due upon that loan, and that the defendant, as administrator, was entitled to the difference between that amount and the market value of the shares, and also to the dividends on such difference. As the remaining parts of the answer have no bearing upon any question subsequently arising, it is not deemed necessary here to state them.
    The answer of the defendant Gould admitted the allegations in the complaint, and stated, that on or about the 4th of October, 1848, he had received from G. M. Tracy the stock certificate and power of transfer mentioned in the complaint, as his security for ' a loan then made by him to Tracy of $2,070, which consisted in part of the sum of $1,800, which he had himself borrowed on the same day from the American Exchange Bank; that Tracy applied the loan so made to him to satisfy a similar loan previously made to him upon the same securities by R. H. Kevins <& Co., and that when he made the loan to Tracy, and procured that from the bank, he had no knowledge or notice that Tracy was not the full and absolute owner, as he appeared to be, of the securities, subject only to the pledge to Kevins & Go.
    He then prayed, that by the judgment of the court, the sixty shares of stock in question might be sold and the proceeds applied to satisfy first the debt due to the American Exchange -Bank, and next, the balance with interest of what would still remain due of the loan he had made to Tracy.
    Upon these pleadings, the cause was tried before Mr. Justice Campbell without a jury, on the 22d of March, 1850.
    Upon the trial the stock note and power of transfer mentioned in the complaint, and also the certificate to Miller, were produced, and proved. Gould, who was examined as a witness on behalf of tiñe plaintiff, sustained by his testimony all the material allegations in the complaint. When the plaintiff rested, the counsel for the defendant Fisher'moved for the dismissal of the complaint substantially upon the same grounds that were relied on upon the appeal now heard: the motion was denied.
    G. M. Tracy was then called as a witness on behalf of the defendant Fisher, and stated the facts relative to the delivery to him by Miller of the certificate and power of transfer of the stock in question, as they were found and appear in the decision of the court. He stated that the date in the power was filled 12th September, 1848, when delivered to him by Miller. • The witness also proved the loan made to him by Gould, as stated in Gould’s answer, and admitted that it was wholly unpaid.
    There was no opening of the case on the part of Gould as against the defendant Fisher; but when the counsel for the plaintiff addressed the court after the testimony was closed and the counsel for the defendant Fisher had been heard, he stated that he appeared also as the counsel for Gould, and claimed a judgment in his favor, and then, for the first time informed the court and the counsel for Fisher, that Gould had put in an answer, in-which he claimed that he was entitled to hold the shares of stock in controversy, for the balance of Ms advances and interest beyond the sum of $1,800 borrowed from the plaintiff. The counsel for Fisher thereupon objected to the answer and claim of Gould being received by the court. The objection was overruled, and the counsel excepted to the decision.
    On the 19th April,' 1853, Mr. Justice Campbell filed Ms decision in writmg, containing the facts found by Mm, and his conclusions of law thereon.
    The decision is m the words following:—
    This cause having been tried before the undersigned, one of the Justices of this court, without a jury, on the twenty-second day of March last, I do hereby, in pursuance of the provisions of the Code of Procedure M that behalf, find the following facts That in the month of September, in the year one thousand eight hundred and forty-eight, one George Manning Tracy received from Arthur G. Miller, the intestate of the defendant, Henry Fisher, the certificate for sixty shares of the capital stock of the Fulton Bank, in the city of New York, and the power of attorney to transfer the same, mentioned and set forth in the complaint in .this action, and delivered to the said Arthur G. Miller in exchange thereof a certificate for one thousand shares of -the Wheal Fortune Mine, a copper mining company. That the transaction between the said- Arthur G. Miller and the said George Manning Tracy was a loan of the said sixty shares of Fulton Bank stock to the said George Manning Tracy by the said Arthur G. Miller, for the purpose of enabling the said George Manning Tracy to borrow money for his own use and benefit upon the pledge and hypothecation of the said Fulton Bank stock. That the agreement between the said Arthur G. Miller and the said George Manning Tracy was, that the said George Manning Tracy should have the right to retain the said sixty shares of Fulton Bank stock as a loan as aforesaid, for the period of three years, the said Arthur G. Miller M the mean time holdmg the said one thousand shares of Wheal Fortune Mine stock as security therefor, and with the right at his election, at any time witMn the said period of three years, to take to his own account absolutely the said one thousand shares of Wheal Fortune Mine stock in exchange for the said sixty shares of Fulton Bank stock, on 'signifying suck election to tke said George Manning Tracy. To wkick finding tke counsel for tke defendant, Henry Eisker, tken and tkere excepted, on tke ground tkat tke said finding tkat tke said stock was a loan for tkree years was not warranted ky tke evidence.
    And I do furtker find, tkat on tke fourtk day of October, in tke year one tkousand eigkt kundred and forty-eigkt, tke said defendant Ckarles Gould, loaned to the said George Manning Tracy tke sum of two tkousand and seventy dollars upon tke said certificate of sixty skares of Fulton Bank stock, and tke said assignment and power to transfer tke same, under tke kand and seal of tke said Arthur G. Miller, set fortk in tke complaint, and wkick were delivered by tke said George Manning Tracy to tke said Ckarles Gould at tke time of suck loan, and tkat tke said . Charles Gould, at the time of suck loan, was authorized by tke said George Manning Tracy to borrow money upon the pledge' and hypothecation of tke said securities. To which last above finding, tke counsel for tke defendant, Henry Fisher, tken and tkere excepted, on tke ground tkat tke same was not warranted by the evidence.
    And I do furtker find, that upon tke said fourth day of October, in tke year one tkousand eigkt hundred and forty-eight, the said tke American Exchange Bank loaned and advanced to the said defendant Charles Gould, the sum of eighteen hundred dollars .upon tke note of the said Charles Gould, commonly called, a stock note, set fortk in tke complaint, and upon tke pledge and hypothecation of tke said stock certificate and assignment, and power to transfer tke same, set fortk in tke complaint, as security therefor, and wkick were delivered by tke said Ckarles Gould to tke said American Exchange Bank, at tke time of suck loan.
    And I do furtker find, tkat tke said Arthur G. Miller departed this life on the first day of November, in the said year one tkou-sand eigkt kundred and forty-nine; tkat on the second day of November, in said year one thousand eigkt kundred and forty-nine, tke said Ckarles Gould received from tke said tke American Exchange Bank tke said certificate for sixty skares of tke capital stock of tke said Fulton Bank, and tke said assignment and power of attorney to transfer tke same, under tke kand and seal’ of tke said Arthur G. Miller, for tke purpose of surrender, ing the said certificate to the said Eulton Bank, and transferring upon the books of the said Eulton Bank the said sixty shares of stock to the said American Exchange Bank, and of procuring the issuing of a new certificate by the said Eulton Bank to the said American. Exchange Bank for the said sixty shares of stock; that at the time of the redeliyery thereof to the said Charles Gould as aforesaid, the names of “David Leavitt, president, &c.,” as the transferee of said stock, and of “ Charles Gould,” as the attorney, to transfer the same, were not written in the said assignment and power of attorney, but blanks were left therein for the names of the transferee and of the attorney to transfer the same, having been blank at the time of the execution thereof by the said Arthur G. Miller, and at all times subsequently thereto, until the said names were inserted therein by the said Charles Gould, after the redelivery thereof to him,_and the name “ David Leavitt, president, &c.,” as the transferee of the said stock, instead of the “American Exchange Bank,” was inserted therein without the knowledge, procurement, or consent of the said American Exchange Bank, or any officer thereof. As to the facts of which last mentioned finding that the said bank delivered the said papers to said Charles Gcmd for the purpose therein stated, and that the name of the transferee therein was inserted without the knowledge, &a, of the bank, the said defendant then and there excepted,, on the ground that said finding was not warranted by the evidence.
    And I further find, that the said sixty shares of Eulton Bank stock were transferred upon the books of the said Eulton Bank on the said second day of November, one thousand eight hundred and forty-nine, by the said Charles Gould to the said David Lea-vitt, president, &c., under the said assignment and power, but the said Eulton Bank declined to issue a certificate therefor to the said American Exchange Bank, in consequence of a notice from the defendant, Henry Eisher, forbidding the issuing of such certificate.
    Anri I do further find, that the said Henry Eisher was appointed administrator of the estate of the said Arthur G. Miller by the surrogate of the county of New York, on or about the 24⅛ day of November, in the year 1849, and letters of administration duly issued to him as sueh administrator.

      And I further find, that at the time when the said loan was made by the said Charles Gould to the said George Manning Tracy, and also at the time when the said loan was made by the said American Exchange Bank to the said Charles Gould, the said American Exchange Bank and the said Charles Gould respectively had no knowledge or notice that the said George Manning Tracy was not the full and absolute owner of the said sixty shares of Eulton Bank stock, and that the said loans respectively were made in good faith and in the usual course of business. To which finding as to the said Charles Gould the said defendant then and there excepted, on the ground that the same was not warranted by the evidence.
    And I do further find, that on or about the second day of January, in the year- one thousand eight hundred and fifty, the said American Exchange Bank, in the name of David Leavitt, its president, commenced an action in this court against the said Eulton Bank, in the city of New York, in the name of John Adams, its president, to compel the issue by the said Eulton Bank to the said American Exchange Bank of a certificate for the said sixty shares of Eulton Bank stock. That thereupon, ¿nd on or about the twenty-first day of January, in the year one thousand eight hundred and fifty, the said John Adams, president of the Eulton Bank, in the city of New York, commenced an action in the nature of an action of an interpleader in this court against the said David Leavitt, president of the American Exchange Bank, and Hemy Eisher, administrator, &c., of Arthur G. Miller, deceased, to compel them to interplead in relation to their'conflicting claims to the said Eulton Bank stock; and that the further prosecution of the said suit commenced by the said David Leavitt, president of the American Exchange Bank, against the said John Adams, president of the Eulton Bank,' in the city of New York, was thereupon stayed by injunction in the said action of interpleader. That such proceedings were thereupon afterwards had in the said action of inter-pleader, that a judgment was duly made and rendered .therein by this court on the thirtieth day of April, in the year one thousand eight hundred and fifty-two, and of which judgment a copy is annexed to the complaint in this action, and that pursuant to the said judgment a certificate for the said sixty shares of stock -was issued and delivered by the said Eulton Bank to the clerk of this court, and the dividends declared thereon subsequent to the second day of November, in the year one thousand eight hundred and forty-nine, paid into this court, and that this action was thereupon commenced in pursuance of the said judgment.
    And I do further find, that there is due at this date from the defendant, Charles Gould, to the American Exchange Bank, upon the said loan made by the said bank to the said Charles Gould, the sum of two thousand one hundred and fifty-eight dollars and seventy-five cents, including interest to this date; and that there is due at this date from the said George Manning Tracy to the said defendant, Charles Gould, upon the said loan made by the said Charles Gould, to the said George Manning Tracy, the sum of two thousand seven hundred and twenty-eight dollars and nine cents, including interest to this date. To which finding as to the amount due from Tracy to Gould the said defendant, Henry Eisher then and there excepted, on the ground that no claim of the said Charles Gould was in any legal or valid form presented in this action upon which such finding could be based.
    And I do decide and declare the conclusions of law from the foregoing facts to be, that the said American Exchange Bank acquired a lien upon the said stock certificate, and assignment and power to transfer the same, delivered to the said bank as security for the loan of one thousand eight hundred dollars made by the said bank to the said Charles Gould as aforesaid, for the repayment of the said loan and interest thereon, and has a lien upon the said sixty shares of stock and the dividends thereon, for the repayment thereof. To which decision and conclusion of the said court, and to each part thereof, the counsel for the defendant, Henry Eisher, did then and there except. That the said Charles Gould acquired a lien upon the said stock certificate, and assignment and power to transfer the same, delivered to him as aforesaid as security for the said loan of two thousand and seventy dollars, made by him to the said George Manning Tracy as aforesaid, for the repayment of the said last mentioned loan and interest thereon, and has a lien upon the said sixty shares of stock and the dividends thereon, for the repayment thereof. To which decision and conclusion as it respects the lien acquired by Charles Goúld, and the lien he is declared to have on said stock and dividends, the said defendant separately as to each then and there excepted. And that the plaintiff is entitled, to be paid, out of the proceeds of the said stock and dividends the said snm of two thousand one hundred and fifty-eight dollars and. seventy-five cents, with interest from this date, in payment and satisfaction of the said loan of one thousand eight hundred dollars,, made by the said American Exchange Bank to the said Charles Could, with the interest thereon. To which decision the said counsel for said defendant then and there excepted. • And. also his costs in the said action commenced by him against the said John Adams, president of the Eulton Bank, in the city of New York, 'his costs in the said action of interpleader, and his costs- in this action. To which said decisions and each of them1 the said counsel for the defendant then and there excepted.. That the defendant, Charles Gould, is next entitled to be paid out of the proceeds of the said stock and dividends the sum of five hundred and sixty-nine dollars and thirty-four cents,, with interest thereon from this date, being the difference between- the said sum of two thousand seven hundred and twenty-eight dollars and nine cents, the amount due upon the said loan of two thousand and seventy dollars, made by the said Charles Gould to the said George Manning Tracy, with interest to this date, and the said sum oí two thousand one hundred and fifty-eight dollars and seventy-five cents, the amount of. the said loan by the said American Exchange Bank to the said Charles Gould, with interest thereon to this date — to which decision, and each part thereof, as it respects the said Charles Gould and-the finding in his favor, the counsel for said defendant then and there excepted — together with the costs of the said defendant, Charles Gould, in this action. To which last-mentioned decision the said defendant then and there excepted. And that the defendant, Henry Fisher, administrator, &c., of Arthur G. Miller, deceased, is entitled to the balance, if any, of the proceeds of the said stock, and interest.
    Dated Hew York, April 19, 1853.
    William W. Campbell.
    From the judgment entered in conformity to this decision, the defendant Fisher appealed to the General Term.

      F. Sandford for the appellant
    contended that the judgment ought to he reversed, and rested his argument upon the following points and authorities:
    I. The testimony as to the usage in relation to passing certificates of stock with assignments and powers of attorney executed in blank, was improperly admitted. 25 Wend., 678, 75, Woodruff v. Merchants' Bank. 6 Hill, 174, S. 0.
    II. The motion to dismiss the complaint should have been granted. 1. The power contained in the instrument signed by Mr. Miller was revoked by his death. The transfer executed in his name by Mr. Gould, professing to act as his attorney after his decease, was unauthorized and void. 2. The plaintiff did not acquire any title to the shares by virtue of the instrument signed by Miller. 22 Wend., 348, 57, 61, 64. Commercial Bank of Buffalo v. Kortright. 1 Duer, 354, 61. Fatman v. Lobach. 3. If valid in other respects, the transfer was made for the use and benefit of a corporation, and was not made to the corporation directly and by name, and was therefore void. 3 Oomst. 479, 85. Cilhtt v. Moody. 1 R. S., 591, § 7. 4. No authority was given by Mr. Miller in his lifetime to Gould to fill any of the blanks which remained in the instrument at the time of its execution, nor to write the name of Miller. 5. If any authority from Miller to do these acts, or either of them, could be implied to Tracy, such power was exercised and was spent by the transfer of the certificates and power to the firm of R. H. Nevins <& Co., as a security for a loan made by them thereon. 6. Gould was not substituted as attorney for Miller by Nevins & Go. or by Tracy. He .acted for and on behalf of the plaintiff.
    TTT. Judgment should have been given for the defendant, Henry Eisher, as administrator, upon the pleadings and proofs.
    IY. The answer and claim of Charles Gould were improperly admitted by the court. 1. The judgment in the interpleader suit determined that the defendants therein should interplead and settle the matter in controversy between themselves. Charles Gould was not a party to that suit, and never made any claim whatever to the subject matter in controversy therein. That judgment determines the power and extent of the present action, and the plaintiff could not enlarge it by making a third person a defendant. 2. If Could could be permitted to tbrust himself into the controversy between these parties, and assert a claim respecting which he had stood mute until after this final judgment, the forms of proceedings in courts, as well as tfte principles which govern in the administration of justice, required him to face his adversary: to make his claim known to him, and give him an opportunity to answer it. Instead of this, he skulked behind the plaintiff, and kept the fact that he had appeared in the cause, or had put in any answer, or pretended to make any claim to the subject matter in controversy, industriously concealed, until after he had been sworn as the sole witness to prove the cause, and after the cause had been summed up on the part of the defendant Eisher, and until the close of the summing up on the part of the plaintiff. 3. If the character of the action, and the mode of concealing this claim from the party to be affected by it until after the close of the trial, did not render it improper and unjust to permit this concealed claimant to thus unmask himself, the case was not one in which it was proper to make any judgment between co-defendants. 1. The complaint does not set out any title of Gould, nor claim any relief on his behalf. 2. The right claimed against the defendant Eisher and the establishment of that right by the judgment in no manner injuriously affects Gould, nor does it give him any claim to any judgment against Eisher. 3. Gould’s claim, if any, is wholly independent of any right or title of the plaintiff. The subject of controversy between the plaintiff and defendant is the right of the plaintiff to hold this stock as a security for the loan made by them to Gould. 1 Paige, 263, 69, Elliott v. Pell. 4. Gould has no title to the stock in question. Whatever interest he may have had he transferred to the plaintiff. He has neither title nor possession.
    V. The judgment at the special term should be reversed, and the court should adjudge that the defendant Eisher is entitled to the shares of stock in question and the dividends thereon, and that the plaintiff should pay his costs.
    VI. If the judgment be not wholly reversed, so much thereof as adjudges that the defendant, Charles Gould, is entitled to be paid $569.34 out of the proceeds, with interest, should be reversed, and the defendant Gould should pay the costs of the'defendant Eisher upon this appeal.

      J. Larocque, for &e plaintiff
    and Gould, respondents, stated and argued the following points:
    I. The defendant, Charles Gould, by the delivery to him of the certificate for the 60 shares- of Fulton Bank stock in question, in this case, standing in the name of Miller, the intestate, and of the stock assignment and power to transfer, acquired a good and valid title to the stock as against Miller, as security for the loan of two thousand and seventy dollars, made by Gould to Tracy at the time of such delivery. ,
    First. — The possession of those documents vested in Tracy the apparent ownership of the stock, and Gould had the right to consider and treat with him as the owner. {Fatman v. Lobach, 1 Duer’s R. 354; Commercial Bank of Buffalo v. Kortright, in Court o/Frrors, 22 Wend. 348 ; same case in Supreme Court, 20 Wend. 91.)
    Second. — This is a stronger case for the respondents than the case of Fatman v. Lobach. 1. The instrument in this case is an assignment and bill of sale of the stock, as well as a power to transfer, which that in the case of Fatman v. Lobach was not. 2. It is also expressed to be “ for value receivedthe power is declared to be irrevocable, and it contains the same unlimited power of substitution. 3. The actual transaction between Miller, the owner of the stock, and Tracy, the pledgor, was an exchange of - the stock in question, for the copper mining stock, with a power to retain the mining stock as his own, at his election, at any time within three years, instead of a mere pledge as a security for a loan, as in the case of Fatman v. Lobach.

    Third. — Gould, at the time of the delivery of the certificate with the assignment and power to transfer to him, had no notice that Tracy was not, as he appeared to be, the fall and absolute owner of the stock.
    Fourth. — The rule that where one of two innocent parties Is to suffer by the act of an agent, he who appointed the agent and induced others to credit him on the faith of such appointment, should be the loser, applies still more strongly in this case than in the former one. {North River Bank v. Aymar, 3 Hill, 268, and cases cited; White v. Springfield Bank, 3 Sandford, 229, and cases cited.)

      II. The American Exchange Bank also acquired a good and Yalid title to the stock by the delivery of the same evidences of title to them as security for the loan of eighteen hundred dollars, made to Could on the faith thereof. 1. The money loaned by the bank to Could was a part of the identical money loaned by Could to Tracy. 2. The pledge of the securities to the bank, for the purpose of enabling’Could to procure the money to make the loan to Tracy, was expressly authorized by the latter, and ratified by him after it was done.
    III. The testimony in this case as to the usage in passing such certificates and stock assignments with powers to transfer from hand to hand, on both sales, and loans, with the names of the transferees and attorneys to transfer in' blank, was full and ample as it was in that of Fatman v. Lobach, and was properly admitted. As in that case, however, so also in this, it was entirely unnecessary, and may be disregarded by the court. (Commercial BanTc of Buffalo y. Fortright, 22 Wend. 848.)
    IY. This being not a naked power, but an assignment of the stock, and a power coupled with an interest, and declared irrevocable on its face, was not revoked by the death of Miller. (Cases above cited, and also Hunt v. Bonsmanüre, 2 Mason, 244; Hancock v. Byrne, 5 Dana, 514; “ Story on Agency,” § 476-7, and cases cited.)
    Y. Nor was the power spent by the delivery of the securities to R. H. Nevins & Co., as security for the loan made by them to Tracy, in repayment of which the money obtained from Could on the pledge of the same securities was afterwards applied. 1. Gould having the right under the rule as laid down by this court in the case already so frequently cited, to deal with Tracy as the owner of the stock, from the mere fact of his-possession of the securities in question, was also justified in supposing, that by the repayment to Nevins & Company of their loan, he was redeeming his own property which had been pledged to them for its security. 2. The bank had no notice whatever that the power had ever been exercised before their loan of $1,800 to Gould was made. 8. It never had, in fact, been exercised by the actual transfer of the stock which it authorized. 4. The authority actually given by Miller to Tracy upon the delivery of the power to him, was a continuing AUTHORITY to use it for his own purposes as often as his necessities or convenience required within the three years.
    VI. The title of the. bank to .the stock in question is not affected or impaired in any degree by the fact that the transfer made by Gould on the 2d November, 1849, was made to “ David Leavitt, President of the American Exchange Bank,” instead of being to “ the American Exchange Bank.” (See 1 R. S. 591, marg. p. § 7.) 1. The bank being one of the associations organized under the general banking law, the name of its president, with the addition of his style of office, is, in' fact, one of its corporate designations which the law expressly recognizes. (Sess. of 1888, p. 250, §§ 20, 21, 22, 24.) 2. The transfer in question was a conveyance or assignment for the benefit of the bank as creditors, and therefore within the express exception in the section in question. (1 R. S. 691, marg. p. § 7.) 8. The only authority given by the bank to Gould, was an authority to transfer to the bank itself by name, and the transfer, in the form in which it was made, was without the knowledge or consent of its officers. 4. At the most, therefore, it would be but a case of defective execution of a power, which could, if necessary, be corrected by the court, by virtue of its equitable jurisdiction^ (2 R. S. 737, marg. p. §§ 131, 132.) 5. But the execution or non-execution of the power is of no importance in this case. The stock is under the control of the court, and a certificate has been issued by the Fulton Bank to the clerk under the judgment in the interpleader suit.
    VII. The objection that Gould was not actually before the court as a party in such a form that his rights could be properly adjudicated, is entirely untenable. 1. He was made a party to the complaint, and if there was any irregularity, the only proper course for the appellant, wasLy motion to strike him out. 2. If such a motion had been made on the ground that the judgment in the interpleader suit did not expressly authorize his introduction as a defendant, it would have been of course to amend that judgment, so as to allow it, his presence being manifestly necessary to a complete determination of the case. 3. He was a competent witness for the bank, and was examined without any objection being made on the part of the appellant. 4. Upon the plaintiff’s case being rested on the trial, the appellant himself called Tracy as a witness, who fully proved the case of the defend ant, Gould. 5. There was not a fact of any importance to the rights of the defendant Gould which was not proved by Tracy, and the court is to be presumed to have entirely disregarded the testimony of Gould, as it was its duty to do in passing upon his own claims.
    YHI. The judgment of the special term should be affirmed with costs.
   By the Couet.

Duer J.

We have found no reasons for altering the opinion that we expressed upon the hearing that the principal question, upon the merits, that we are now required to determine, is exactly the same that was expressly determined by this Court in Fatman v. Lobach, and virtually, by the Court of Errors, in the thoroughly considered case of the Commercial Bank of Buffalo v. Kortright; and we agree with the counsel for the plaintiff for the reasons he has given, that if there is any difference between this case and Fatman v. Lobach, the difference is in favor of his client. But, in reality, although the cases differ in their circumstances, in principle they are not to be distinguished.

The law, therefore, so far as this court is concerned, must be considered as settled, that where a certificate of shares of stock, and an irrevocable power of attorney from the owner to transfer them, with a blank for the name of the attorney, are in the hands of a third person, the holder of the securities, as they may properly be termed, is presumptively the equitable owner of the shares, and that, when he is shown to be a holder for value, and without notice, his title as such owner cannot be impeached. That such a power is not limited to the person to whom it may first have been delivered, but enures to the benefit of each bond fide holder into whose hands the certificate and power may subsequently pass, each successive holder having the right to fill up the blanks, and execute the power, or cause it to be executed, whenever the protection of his own interests, as a pledgee or absolute owner, may require it. That the power is not exhausted by the first use to which it is applied, nor revoked by the death of the party giving it, but, unless surrendered to the person who gave it, or cancelled, continues in force until its execution by an actual transfer of the shares to which it relates; and that the validity neither of the power or of the transfer, is, at all, affected by the number of the persons through whose hands the certificate and power, since their first delivery may have passed. It is not necessary now to dwell upon the manifest reasons of public convenience and public policy that commend these rules to our adoption, and require us to enforce them; it is sufficient to say that they are the rules, which, in our judgment, are established by decisions that we are bound to follow. If* they have not been so explicitly stated in any previous case, they are necessarily implied in both of those to which I have referred, and in many others.

It is not necessary to discuss the question, whether the evidence of usage, which ⅛ appears from -the case was given on the trial, was properly admitted, for, as the existence of the usage has not been found as a fact by the Judge, we must consider the evidence in relation to it, as finally rejected. The exception to the admissibility of the evidence has thus been rendered immaterial. We also deem it useless to discuss the question whether the transfer from Gould to the plaintiff was not void under that provision of the Revised Statutes which declares, that “ no assignment or transfer of any effects for the benefit or security of a moneyed corporation shall be valid in law, unless it be made to the corporation directly and by name.” (1. R. S. § 57, p. 591.) The objection was not much pressed and is plainly untenable. The transfer was made to the plaintiff, not individually, but as president of the bank, and was therefore made by the fair interpretation of the provisions of the general banking law directly, and by name to the bank itself.

If we are right in the observations that have been made, they furnish a complete answer to all the arguments that have been urged to induce us to reverse the judgment in favor of the plaintiff Leavitt; and the bank which he represents. So far, therefore, the judgment appealed from must be affirmed.

The only question that remains is, whether we are bound to reverse or modify that part of the judgment which admits and directs to be satisfied the claim of the appellant’s co-defendant Gould. The arguments to convince us that such is our duty, were pressed upon us with great earnestness by the learned counsel for the appellant, and our respect for the counsel and his manifest sincerity, has led us to examine them with more than' ordinary care. We own, that they created at first some doubts in our minds, but we are now satisfied that they were founded upon a misapprehension both of the facts and of the law of the case, and that in truth, no other judgment than that which has been so vehemently assailed, could with propriety have been rendered-

The grounds upon which it is sought to be reversed are, First— That Gould was improperly made a party to the action, and that his answer ought therefore to be suppressed, and his name be stricken from the record. Second — That if Gould was properly made a party, express notice of his claim ought to have been given to his co-defendant before the trial, and as it was not made known until then, nor until the testimony was closed, it ought to have been rejected. And, lastly — That the case from the character of the pleadings and the nature of the claim, is not one in which a judgment as between co-defendants, can properly be rendered.

These objections will be considered in their order as stated. As to the first. We understand that it rests entirely upon the allegation that the judgment of interpleader, by which a new action between the plaintiff and appellant was ordered, plainly directs that if the action should be brought by the plaintiff, the appellant as administrator &c. of Miller, should be made the sole defendant. It was for the determination of their rights alone that the action was ordered, and it was, therefore, not competent to the plaintiff to alter its form and extent by the introduction of a new defendant. It is a sufficient reply to this objection thatthe facts upon which it is founded appear upon the face of the complaint, and consequently that the appellant, if he wished to avail himself of the objection, was bound to take it in his answer. 3STot only is the judgment of interpleader referred to in the complaint, but a copy is annexed, and is, therefore, to be considered a part of the complaint, and, hence, the question whether the terms of the judgment require the interpretation that the appellant gives to them, had he chosen to answer, would have been distinctly raised. Even if the reference to the judgment in the complaint, notwithstanding a copy is annexed, is to be deemed insufficient, the appellant might have set forth the judgment in his answer and relied upon it as a bar to the farther prosecution of the suit in its actual form, and had he taken the objection, either by demurrer or by answer, if valid, it ■would have been sustained. But if so, it is certain that it cannot now be sustained, for the plain reason, that at this time we have no right to listen to it at all. The provisions of the Code in §§ 144-147, and 148, as they have been construed by this court in other cases, apply just as well to an excess of parties, as to a defect,in the strict sense of the term; and they declare, that, in each case, if the objection shall not be taken by demurrer or by answer, the defendant shall be deemed to have waived it. If not thus taken, although the court is not precluded from acting upon its own motion, (Davis v. The Mayor, &c., 1 Duer, 665-6, Code, § 122,) it cannot be taken by the defendant in any other mode or in any other stage of the cause.

But although this reply to the objection that Gould ought not to have been made a party, is, in our opinion, sufficient and conclusive, it is not that upon which alone we desire or mean to rest our decision. We reject, as far too narrow, that construction of the judgment of interpleader that we have been urged to adopt, and upon which the whole argument for the suppression of the answer of Gould was manifestly founded. We reject it as a construction, which, adhering servilely to the letter of the judgment, overlooks entirely its spirit and intent, and thus presents a case to which the sound maxim, “ qui hceret in litera, hmret in cortice, ” emphatically applies. Even upon the supposition then that we have erred in our construction of the Code, and that its provisions are only applicable to a defect and never to an excess of parties, and consequently that the motion for suppressing the answer and striking out the name of Gould was properly made upon the trial "at special term, we retain the opinion that the Judge would have erred had he granted the motion, and that his decision denying it must therefore be affirmed.

We think that the substantial meaning of the judgment of interpleader'was this and only this; that a suit should be instituted in which the respective claims of the plaintiff, as representing the American Exchange Bank, and of the appellant, as the personal representative of Miller, to the sixty shares of stock which are the subjects in controversy, should be finally determined, and consequently that by the institution of the present action, in which a determination of their claims that may become final, has been made, the purposes of the judgment have been fully answered and the judgment been carried into effect according to tbe intentions of tbe court tbat pronounced it. It is true that tbe judgment admits tbat tbe plaintiff and tbe appellant shall be made tbe parties in tbe action to be brought, and mentions none other, but we think tbat it would be unreasonable to construe this silence, as forbidding tbe introduction of other persons as parties whose presence as such, from tbe interest claimed by them in tbe property, which was tbe subject of tbe controversy, might become necessary to its proper and final determination — a prohibition which should have this effect, we are satisfied could not have been intended by tbe court, and as it is not expressed, it certainly ought not to be implied; and in its absence, we cannot doubt tbat Gould was, not merely, a proper but a necessary party. Not only without bis presence could there be no complete determination of the controversy, but from the nature of the controversy, without his presence, no final judgment could rightfully have been given.

As the American Exchange Bank claimed, not the absolute ownership of the sixty shares of stock, but merely the right of selling them, for the purpose of satisfying the debt for the sum pledged, no other than a judgment ordering their sale, — should their claim be established, even had Gould not been made a party to the action,' — could properly have been rendered; and, in effect, it is this judgment that the appellant, in his answer, by claiming the difference between the market value of the shares and the amount that might be found due to the bank, required to be given. But it is manifest that the court would have been guilty of great injustice, if in ordering the shares to be sold it had directed the surplus proceeds to be immediately paid over to the appellant, without giving to Gould any. opportunity of being heard and asserting his claims, although it appeared upon the complaint that it was from him as a bond fide holder, and perhaps absolute owner, that the bank derived its title. On the other hand, had it been shown that the bank had no claim to the shares, by proof that no loan had been made to Gould, or that the loan had been satisfied, or the debt released, a judgment directing an immediate transfer of the shares to the appellant, without an opportunity allowed to Gould of vindicating his rights as an absolute or conditional owner, would have been equally and as palpably unjust. We may therefore he certain that in neither of the cases supposed would a judgment have been rendered affecting the interests and disaffirming the rights- of Gould without his presence as a party to the action, and consequently that he must and would have been made a defendant.by an order of the court upon the hearing of the cause, had he not been made so by the act of the plaintiff in the commencement of the suit.

We pass then to the next objection : That the appellant had not only no sufficient notice, but none whatever of the claims of Gould, until the trial of the cause.

It would, perhaps, be a sufficient reply to this objection, that although this want of notice, were it truly alleged, would have been a sufficient reason for the postponement of the trial in order that a farther opportunity might be given to the appellant of contesting by witnesses the claims of Gould, it was not a reason, that could justify the absolute rejection of a claim, which had been properly made in the answer of Gould, and as the case then stood, the evidence of Tracy, the appellant’s own witness, had fully established — and that it is this absolute rejection that was alone demanded, as well upon the trial as upon the argument before us; yet we should not have acquiesced in this reply, had we been satisfied that no such notice of the claims of Gould had been given to the appellant as made it his duty to be prepared to meet them upon the trial, for had this been our conviction we should have ordered a new trial', not indeed of the whole case, but as between^ the appellant and Gould, and for the sole purpose of settling their opposite claims, to the surplus proceeds of the sale that has been ordered.

It was upon this question of a sufficient notice to the appellant that the argument of his counsel created some doubts in our minds upon the hearing, but these have been wholly removed by a careful examination of the pleadings, and we are now convinced, that all the notice to which the appellant was entitled was in fact given, and that from the notice thus given he was bound to know that the claims of Gould to an interest in the stock beyond the amount which he had borrowed from the bank, might and probably would be preferred upon the trial, and if then established by proof, must be allowed by the court. If, therefore, there was any surprise, it was the result of the appellant’s own negligence and is not imputable to any act or proceeding of the plaintiff or of Gould.

The complaint contains a distinct and positive averment, not only that the assignment and power of attorney from Miller were delivered to the bank by Gould as its security for the loan then made to him, but that he had acquired the possession under circumstances that gave him all the rights of a bond fide holder for value, and that value was in fact given by him; and the appellant in his answer not only denies specifically these allegations, but'avers positively that no value or consideration whatever was given by Gould either to Tracy or Miller, and he closes his answer by stating that Gould was the real plaintiff, claiming the stock adversely to the appellant as administrator. The appellant then presumed that under the issue which he had himself raised, the claims of Gould upon the stock would or might become a subject of investigation upon the trial. He knew further, from the complaint, that Gould was made a defendant in the action and might set forth his claims in his answer and insist upon their satisfaction, and he was bound to know that it would be competent to Gould to support his answer by proof upon the trial, and that, should, it be proved that he was a bond fide holder of the stock for a value exceeding the sum which he had borrowed from the bank, it would be the duty of the court to decree the satisfaction of this claim out of the surplus proceeds of a sale, instead of directing all these proceeds to be paid to the appellant as the personal representative of Miller. Under these circumstances, we find it impossible to say that the notice which the appellant had received and the knowledge which he possessed, or was bound to possess, were not sufficient to impose upon him the duty of being prepared to meet upon the trial any claims whatever upon the stock which Gould might then advanee by his counsel and sustain by testimony. The appellant’s ignorance of the actual contents of the answer of Gould must, with the knowledge Which he in fact possessed, and which made it his duty to inquire, be deemed voluntary, and could not therefore be properly urged, either upon the trial or upon the hearing of this appeal. If he desired to know the precise contents of this answer he might and should have ascertained them by a proper inquiry. If the answer were not filed, he might have compelled it to be so by an order of court, or had he demanded its production from the attorney of Gould it could not have been refused. It was his own fault therefore, that he chose to proceed to the trial without a full knowledge of the nature and extent of the claim that Gould had made in his answer and upon the trial would be entitled to prove. We find no authority for the position that the appellant was entitled without demand to the service of a copy of the answer, and that without such service the adverse claim of his co-defendant would not be admitted. The service by one defendant of his answer and of a copy of his answer upon a co-defendant, is not required, in any case, by the provisions of the Code, nor, as we understand, was it required by the former practice in Chancery in cases similar to the present. That.cases may arise in which such a service, although not made necessary by the provisions of the Code, may be justly required by the court, we do not doubt, but the present, for the reasons already given, does not fall within the class of those to which we allude. The cases to which the admission that we have made would apply are those alone, in which there is no reference whatever in the complaint to the actual or probable existence of a claim, that subsequently is set up in an answer.

We can attach no importance to the fact that the claim of Gould was not brought forward by his counsel upon the trial until the testimony was closed and the counsel for the appellant had addressed the court. This course was doubtless irregular, but was not an irregularity that can furnish any ground for a reversal of the judgment, nor is it seen how it could have worked any prejudice to the' appellant. When the counsel for the plaintiff stated that he was also the counsel for Gould, and upon the evidence of Tracy demanded a judgment in his favor, the statement might justly have been regarded as the opening of the case on behalf of Gould, and the counsel for the appellant might then,' very properly, have demanded to be heard in reply; but instead of replying to the claim of Gould upon the evidence and the law, he chose to demand its entire suppression, and the total exclusion of Gould as a defendant in the action — a demand with which it was impossible for the Judge to comply without a plain violation of the rights of Gould and of his own duty.

The next objection to the judgment in favor of Gould, is that the ease is not one in which a judgment between co-defendants can properly be rendered; and the first reason assigned in support of the objection is, that the complainant does not set out any title in Gould, nor claim any relief on his behalf. This reasoning it seems to us, involves a misconception of the proper office of a complaint, and of the real contents of that which is before us. The complaint does set forth the title of Gould just as fully as was necessary to justify the insertion of his name as a defendant. It sets out his title as a bond fide holder of the stock, for value, leaving, as was manifestly proper, the nature and extent of his claims, as founded on the value he had given to be set out by himself in his answer. It is true the complaint demands no relief on his behalf; but we apprehend such a demand so far from being necessary would have been a palpable error. The demand by a plaintiff on behalf of a defendant for the relief to which the latter may be entitled, but may claim or not, at his own election, would be a novelty in pleading, and if not demurrable, would certainly be stricken out on motion, as wholly irrelevant.

The other reasons that were urged in support of the last objection to the judgment, have already been disposed of, by showing that Gould was not a stranger, whose introduction as a party, raised a new issue foreign to the controversy; but that, on the contrary, his presence was necessary to its complete determination.

It is also to be observed that this is not a case in which a judgment is rendered in favor of one defendant against another. No judgment is sought or has been rendered against the appellant individually, or as the administrator, &c., of Miller. All that has been done is to determine the respective claims of the parties, and the order of their satisfaction, upon a fund, in which they have a common interest; and the judgment rendered is exactly such as Courts of Equity have at all times been accustomed to render, when adverse claims to a fund in court are necessary to be settled. It is not a judgment, as was supposed, that can only be warranted by the provisions of the Code. In conclusion, we see no reason to believe or indeed suspect that any injustice has been done; nor has it been pretended that if a hew trial were granted, any further testimony can be given, by which the case as between the appellant and Gould can be at all varied.

The judgment must, therefore, be affirmed with costs on this appeal .to the respondents, to be paid out of the proceeds of the sale that has been ordered.


source: Caselaw Access Project

author: Bosworth J.

license: Public Domain

text:
    Williams, respondent, v. Jane Christie, Preston and Wife, Truex and Wife, and Jennings & Gridley, appellants.
    Every written cofltract, made by an agent, in order to be binding on his principal, must purport, on its face, to be made by the principal, and must be executed in his name, and not in the name of the agent.
    It cannot be shown by parol, that the alleged agent, in signing his own name to the contract in fact signed as agent, and thus convert a contract, which, on its face, is his own, into a contract of his alleged principal, and make it enforceable as such.
    A contract by the husband of a married woman, to which she is not a party, to convejr land, of which she is seized in her right, gives no right to any relief against the wife. She can make a valid conveyance of her interest in such land to a person having notice of such a contract, and of her refusal to assent to it, or to co-operate in executing it.
    So long as the party holding such a contract has no rights under it, legal or equitable, as against her, she can make a conveyance of her interest, valid and effectual as against him. Such a conveyance confers on him no rights which he would not otherwise possess. Having none before such a conveyance, he can acquire none by reason of it.
    When a judgment is reversed, the complaint will not be dismissed as to all, though necessarily dismissed as to some of the defendants, if on the facts stated in it, and established on the trial, the plaintiff is entitled to some relief, as against a part of the defendants. As to such defendants the action will be retained, that the plaintiff may have such relief, as against them, as he may establish a right to.
    (Before Oakley, Oh. J., Doer and Bosworth, J. J.)
    June 21;
    June 24, 1854.
    Facts. — This action was tried at a special term, without a jury. ’ It was brought against Jane Christie, Stephen L. Preston, and Margaret Ann, his wife,'Levi H. Truex, and Mary Jane, his wife, to enforce the specific performance of a contract, alleged to have been made by them, for the sale and conveyance to the plaintiff, of certain real estate, of which Margaret Ann Preston, and Mary Jane Truex, were seized in fee as tenants in common and heirs-at law of their father, David Christie, deceased, subject to the dower-right of their mother, Jane Christie, and subject also, as was claimed, to the life estate, as tenants, by the courtesy .of England, of their respective husbands, Stephen L. Preston, and Levi H. Truex. Oscar S. Jennings and R. Gridley, were also made defendants, as grantees of the property, subsequent to, 'and with notice of the agreement, to convey to the plaintiffs, to the end that the deed to them might be decreed fraudulent as to the plaintiff, and be also decreed to be cancelled.
    The agreement, a specific performance cf which was sought, was as follows, viz:
    ‘ This agreement, made and entered into this 29,th day of November, 1850, between Jane Christie, widow of David Christie, Stephen L. Preston and Margaret Ann, his wife, and Levi H. Truex and Mary Jane, his wife, parties of the first part, and Philip H; Williams, party of the second part, witnesseth: That the said parties of the first part agree to sell, and the party of the second part agrees to purchase, all' those four certain lots, pieces or parcels of land, situate, lying and being in the Nineteenth ward of the city of New York, and taken together contain as follows: — Beginning at a point formed by the intersection of the easterly side of the Ninth avenue with the northerly side of Forty-first street, running thence northerly along said easterly side of the Ninth avenue ninety-eight feet and nine inches to the centre line of the block between Forty-first and Forty-second streets, thence easterly along said centre line and parallel with Forty-first street one hundred feet, thence southerly, parallel with the Ninth avenue ninety-eight feet and nine inches to the northerly side of Forty-first street, and thence westerly along said northerly side of Forty-first street one hundred feet to the point or place of beginning, for the price or consideration of five thousand dollars, as follows: — One hundred dollars being-now paid, the receipt whereof is hereby acknowledged; fifteen hundred dollars to be paid on the 1st day of January, 1851, and the balance of three thousand four hundred dollars to be secured by the bond and mortgage of the party of the second part, payable within three years, with interest payable semi-annually, when a full'covenant warrantee deed, free from incumbrance to that date, is to be given; it being hereby understood and agreed that the parties of the first part are to pay the assessment for the sewer on Ninth avenue, and for the regrading and setting curb and gutter on said avenue.
    “ In witness whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written.
    “ Jane ChRistie, [l. s.]
    “ Stephen L. Preston, [l. s.]
    “L. H. Teuex, [l. s.]
    “P. H. Williams, [l. s.]
    “ Sealed and delivered in the presence of
    “ Theodore Martine,
    “ As to S, Preston, L. Truex,)
    and P. H. Williams.” )
    The defendants, Margaret Ann Preston, and Mary Jane Truex, in their answer, insisted that the agreement, not having been executed by them, nor in their names, was inoperative as to them, and they plead, in bar, to the claim of the plaintiff, the statute entitled, “ Of fraudulent conveyances and contracts relating to land,” being Part 2d, Title 1 of Chapter 7 of the Revised Statutes.
    On the trial, the plaintiff proved the following receipt:
    “ Dolls. $100. ■ Rec’d from P. H. Williams per T. Martine one hundred dollars on acH of sale of property to him ly Jane Christie, S. L. Preston and myself L. H. Truex.
    “New York, January 18th, 1851.”
    The plaintiff also gave evidence tending to show, that when Truex was paid this $100, he represented that a conveyance would be ready for the plaintiff in ten or twelve days, that it was necessary to sell other property to pay the encumbrances on the property in question, and that he solicited and received the $100 on account of the contract.
    The complaint alleged, but the answers denied that Truex applied for the payment of this $100 on account of the purchase money, and requested an extension of time to give a deed inexe-cution of the contract, and the answers particularly denied that the wife of Truex or Christie knew of, assented to, or approved of, any such application or.payment.
    It appeared that after the time named in the contract for delivering a deed to the plaintiff — a deed to the plaintiff of the .premises, duly executed and acknowledged by all the parties to the agreement, and also by the wife of Truex and the wife of Christie, was tendered to the plaintiff on the 20th of January, 1851, at 9,o’clock, A. M., on the condition of his then paying $1,500, and executing such a bond and mortgage, as was required of him by the contract, but that it was executed and acknowledged for. the sole purpose of making such a conditional tender, and to be destroyed if such conditional tender was not accepted when offered and its terms then complied with. The deed not having been accepted on the terms offered, it was destroyed, and the premises were conveyed the same-day to Jennings and Gridley for the contract price of $5,000. The mortgage on the premises was satisfied out of the purchase money when the deed was delivered to them, and the taxes and assessments imposed on the property, subsequent to the 20th of January, 1851, were paid by Jennings and Gridley. David Christie died about twenty years prior to the trial of the action. Truex and wife were married on the 3d of July, 1847, and Preston and wife about the 1st of Fo-vember, 1848. The Judge before whom the action was tried, decided that the contract ought to have been specifically performed. That Jennings and Gridley took their deed with notice of the plaintiff’s rights, and under it held the premises, as trustees of the plaintiff. That they should pay all liens and incumbrances on the premises at the time of the decision, and on the plaintiff’s tendering them the sum of $1,400, and his bond conditioned to pay them $3,400 within three years from the 1st of January, 1851, with interest semi-annually, to be computed from the date of the judgment, and his mortgage acknowledged so as to be recorded, upon the premises in question, to secure the payment of the bond, Jennings and Gridley should execute to the plaintiff a deed of the premises, with covenants against their own acts, and to be duly acknowledged, and to be executed by the wife of each, if he had any. He also adjudged costs to the plaintiff, amounting to $240.98, against all the defendants.

      The defendants appealed from the judgment.

      John Anthon, Esq., for the appellants,
    made and argued the following points:
    I. The title to the land in controversy on the 29th November, 1850, (the date of the agreement to convey,) was vested in Margaret Ann, the wife of defendant Preston, and Mary Jane, the wife of defendant Truex, as tenants in common. Independent of the statutes of 1848,1849, no agreement made by them and their husbands, however formal, could have been enforced against any of them. Such agreement prior to those statutes would have been merely void. - (Opinion, Hoffman J., in this case; 2 Kent, 168; Sug. Vend. 230; Emery v. Ware, 8 Yes., Jr., 516; Davis v. Jones, 1 New. Rep. 267, Sir James Mansfield, ad Jinem.) ,
    H. Mrs. Truex having been married before the passage of said statutes, they do not in any wise affect her then subsisting marriage contract, and so far as concerns her undivided one-half of the premises in controversy, she is fully under the protection of the Common Law, as stated in the preceding point, and therefore in no event can the plaintiff acquire title under said agreement to her one-half. (Same authorities.)
    EU. The Judge, at special term, clearly erred in requiring her said one-half part of said premises to be conveyed to the plaintiff.
    IY. The agreement of 29th November, 1850," is under seal, and purports to be an agreement by the husbands and wives to convey to plaintiff the lands of the wives. ,
    If the wives can, by the operation of said statutes, or otherwise, be bound by such an agreement, it must satisfy the .statute of frauds, and for this purpose must be signed by the wives, or by their agent lawfully authorized, under seal, and must be accompanied by their acknowledgment, (2 R. S,, 194, § -.6., 9:; Blood v. Goodrich, 9 Wend; 68; id. 13 Wend. 525; Albany F. 1. .0. v. Bay, 4 Com. 9.)
    Y. This agreement was not signed by the wives, neither in person, nor by their agent in any wise authorized, nor acknowi-edged by them, and is consequently under the statute a void instrument, with reference to both.
    YI. These married women being thus free-to convey, at their will, and to whom they pleased, and all the world, consequently, being equally free to contract with them, their deed to Gfridley and Jennings, duly executed and acknowledged according to law, was valid and operative, and could not be affected by a knowledge of the physical existence of an outstanding void contract.
    VIL A contract void under the statute of frauds does not admit of ratification.- It leaves the parties free to make a new and valid contract, observing the requirement of the statute; and this when done with all formality is a new contract, and not a setting up of the void one, and derives no strength from it.
    VIII. The deed of 20th January, -1851, was in effect such new contract proposed in fieri. It could have no legal operation until delivered and accepted, and plaintiff had then no right, and consequently was under no legal obligation to receive it, and the owners of the property had a right to attach to their offer to deliver it as a new contract any conditions they pleased. The conditions having been rejected, the deed never had any legal effect.
    IX. The judge at special term erred in ruling that this undelivered deed was a ratification of the agreement of 29th November, 1850.
    1. Because without delivery it had no legal efficacy.
    2. Because the void contract could not be ratified.
    X. In every case of ratification the intent is the controlling ingredient, and here it was fully in proof that the deed was made and tendered under the advice of counsel to destroy, not to give, vitality to the agreement of 29th November, 1850.
    XI. Gfridley and Jennings took the property upon the same terms and at the same price mentioned in the void agreement with plaintiff, thus shutting out all idea of fraud.
    XII. The Judge at special term erred in giving effect to tlie void agreement of 29th November, 1850, against the feme covert owners by declaring their grantees in the deed of January 20, 1851, trustees for parties who under said void agreement had no rights.
    XIII. If the void agreement was at all susceptible of any kind of legal resuscitation, the decree ought to have been according to the prayer by directing a deed to be made by all the parties according to the terms of that agreement, and directing the deed to Gridley and Jennings to be given up to be cancelled.

      XIY. By the terms of the contract, 29th November, 1850, the plaintiff is to pay $1,500, on the 1st January, 1851, and to give a mortgage for $3,400, with interest semi-annually from same date. The judgment as entered casts a heavy loss on these married women by directing the cash payment to be made without interest at the date of the judgment, and the mortgage for the balance to bear the same date. The following statement shows the loss.
    _ Judgment, p. 23, fo. 78.
    Interest on $3,400 from 20th January, 1851, to 17th
    May, 1854,.$791 12
    Interest on $1,400 same period,. 325 75
    Interest on $200,. 46 54
    $1,163' 41
    XV. The Judge, in rendering this judgment, made no distinction between the married women, whose rights are manifestly different. If the contract can be sustained by any refinement, it can only be against the one married since 1849.
    XVI. The complaint ought to have been dismissed with costs as to all the defendants, the contract sought to be enforced being utterly void.

      D. D. Field, Esq.-, for respondent,
    made and argued the following points:

    I. The agreement between the plaintiff and the defendants CHRISTIE, Preston, and Truex, dated November 29th, 1850, was a valid agreement, and bound the said defendants to the performance thereof.
    II. The defendants entirely failed to perform the said agreement ; their pretended tender was unreasonable and insufficient, and if the fee of the land were now vested in them, they would be compelled to convey it to the plaintiff.
    III. The objection that the wives of Preston and Truex could' not be required to convey, is not a valid one since the act of 1848.
    IV. If it were valid, the objection has been removed by the execution and acknowledgment of a deed by the husbands and wives, and the tender of it to the plaintiff.

      Y. The objection moreover was purely personal witb the wives, and the defendants Jennings and Gridley cannot urge it; and having taken their deed with knowledge of the plaintiff’s rights, they were rightfully treated as trustees for him. 2 Story’s Equity, 1390-1392. 13 Conn. R. 478.
   By the Oouet.

Bosworth J.

The only written agreement for the sale and conveyance to the plaintiff of the real estate in. question, that has been proved, or is alleged to have been signed, was not signed, either by the wife of Preston, or the wife of Trues. Each of these two defendants pleads the statute of frauds, in bar of all relief sought against her. The signature of the husband of Mrs. Preston, or of the husband of Mrs. Truex, does not purport to have been made in behalf of, or as agent of his wife. There is nothing on the face of the agreement which intimates that either was agent, or that he assumed to act as agent for his wife in signing it.

We consider the doctrine well settled, that every written contract made by an agent, in order to be binding upon his principal, must purport on its face to be made by the principal, and must be executed in his name, and not in the name of his agent. (Evans v. Wells, 22 Wend. 324.)

It cannot be shown by parol, that the alleged agent, in signing his own name to the contract, in fact signed as agent and thus convert a contract, which, on its face is his own, into a contract of his alleged principal, and make it enforceable as such. This would be altering the plain meaning and clear legal import of written contracts, by unwritten evidence, which is inadmissible.

Irrespective of the consequences of executing, acknowledging, and tendering the deedt o the plaintiff, there is clearly no right shown to any relief against the wives of Preston and Truex. In this view we understand the Judge, whose judgment is appealed from, to have concurred. He says, “had they utterly repudiated the contract, no power could have compelled them to perform it.”

The deed was executed to be specially tendered. It was specially tendered. „ It was never unconditionally delivered by the married women to any one. It never passed from the hands of their agent to make and who made the tender. Hot being bound by tbe contract, it was competent for them to tender a conveyance upon any terms, and encumbered by any conditions that tbey might be pleased to annex to it. Such a tender, unaccepted, did not in law or equity divest or impair their title, or power of subsequent disposition. An unaccepted tender conferred no new rights upon the plaintiff.

. But it is urged, that the wives having actually conveyed to Jennings and Gridley, the latter cannot protect themselves in their purchase, by the objection that their vendors were under no obligation, legal or equitable, to convey to the plaintiff.

It is certainly an extraordinary proposition, that a woman, whether married or unmarried, who is under no obligation to convey her lands to the plaintiff, .cannot make a sale and conveyance to a third person, valid, both at law and in equity, against the plaintiff. If the plaintiff has no claims under the contract of the 29th of November, 1850, against the wives of Preston and Truex, if their interest and estate in the lands are in no way affected by it, it is absurd to say, that no subsequent grantee of theirs can hold the lands against the plaintiff. So long as it is conceded, that the plaintiff had no claims legal or equitable to a conveyance from the wives of Preston and Truex, at the time they conveyed to Jennings and Gridley, it must also be conceded, that such conveyance did not create any equities or rights which would not have existed had that conveyance not been made. ■

The judgment appealed from should be reversed, and the complaint be dismissed as to the wives of Preston and Truex, and the defendants Jennings and Gridley, but without costs to either party.. A new trial should be ordered as to the other defendants, to enable the plaintiff to recover such damages as he may show himself entitled to. Prom some, or all of them, he is entitled to recover the-money paid on account of the contract price. Whether he is entitled to any thing in addition, it would be premature to attemptt to decide now.