Souder v. Columbia National Bank

Opinion by Me. Justice Thompson, The formation of stock companies in the last half century has led to a gigantic development of manufacturing, mining and transporting interests. The trend of judicial decisions in regard to the millions of dollars represented by certificates of stock issued by them is for public convenience, towards a facility in making their sale and transfer, and the avoidance of that which would tend to hamper the same. While they are not in form or effect negotiable, yet tbey are for tbe purpose of sale and transfer given an approximate character. A certificate with an assignment in blank with an irrevocable power of attorney executed is wlien lield by a third party evidence of ownership, and such title, when based upon value and without notice of intervening rights, cannot be successfully attacked. In tbe stock markets large numbers of certificates pass constantly from sellers to purchasers by the execution of assignments in blank and irrevocable powers of attorney. These transactions have their warrant in judicial decision. In Finney’s Ap., 59 Pa. 400, it is said: “ Pennock having assigned to Snowden, and delivered to him the certificate, with a power of attorney to transfer the stock on the books of the company a month and a half before the levy at tho instance of Finney, trustee, passed Pennock’s interest in it to him, and although it stood on tho books of the company in the name of Pennock, a sale of it in bis name would not divest Snowden’s prior title; so that Snowden’s sale after380 wards, in pursuance of the pledge of the stock, with notice to Finney and Pennoek, passed a good title to the stock. That this was the effect of the assignment and delivery of the stock to Snowden is clearly shown in Commonwealth ,v. Watmough, 6 Wharton, 117, and in Building Association v. Sendmeyer, 14 Wright, 67.” Without doubt the holder of a certificate of stock with an assignment in blank and an irrevocable power of attorney executed without notice, and for. value, will be protected in his title. Such protection has its foundation in the principle that the owner having placed all the indicia of title in another, will not be permitted to deny the title of the vendee who has purchased the same on their faith, and without notice of the owner’s rights. But it is here contended that as appellant was a married woman in 1886, when she delivered the certificate and executed the assignment in blank and irrevocable power of attorney, no title passed to the holder, because it lacked the essential necessary to pass title, namely, the assent of her husband. At the time of their execution the assent oral or written of the husband was necessary to pass title to the holders. The husband testified that he objected to the loan of the stock to her brother, “ that he signed the power of attorney as a witness, that the brother asked him to sign it and that he objected all along, before the signatures were put down; ” and after the papers were executed, he sa}^: “ I don’t know that I said anything after I found that they were signed and delivered, Í don’t know that I objected any more.” When asked what he said to indicate his objection, he replied : “ I don’t just remember the remark that I made, except this one thing: I said to him, says I, if you take this stock if you get it, it would go the way the First National Bank stock went, which you borrowed and neglected to return.” At the time the stock was loaned, a note for $11,000 was given to appellant, and this was in the writing of the husband. The wife, the appellant, says she signed the, power of attorney and that she received the note for $11,000 and that her husband said “ that he was afraid that when the time went around (60 days) he would not return it. It would be like that First National Bank stock, he would keep it. That was all he said.” When asked if he signed it of his own accord, she replied that “ while there was no other witnesses there I do [381] not know what be did of his own accord. Of course we had to have a witness to the transfer.” The brother James M. Danner testified that he was pretty-positive “ that the words filled in with pen, on the date of the power of attorney 25th day of March, A. i>. 1886, are in the handwriting of William IT. Souder, that he handed him the certificate and power of attorney.” “I think my sister objected.” “ She said as much as we did not like to give up the certificate without its value for it, and we talked the matter over and I suggested to Mr. Souder that we give an individual note and he suggested that the amount be $11,000 at 60 days. He seemed to be satisfied and he said he would witness the signatures and he drew the note, and I took the note to Schall’s house, and got him to sign it.” Again: “ Mr. Souder said that Mary ought to have something to show that she had given up the certificate, and suggested that we should give an individual note. And Mr. Souder named the amount and filled up the note, and I took it to Mr. Schall’s as 1 said before, and had him sign it, as you see in the note.” “ Then when I brought the note back, I don’t know whether Mr. Souder had signed the certificate before or after I had brought the note back.” On cross-examination he was asked: “ Aint it a fact that Mr. Souder refused to consent to your taking the stock away ? ” He answered: “ He did, until I suggested we give her that note, and then he witnessed my sister’s signature.” The master finds : “ There seems to have been considerable demur and objection on the part of Mrs. Souder and her husband, who was present at the interview, to the lending of the stock, but as a result of the interview the certificate was delivered to James M. Danner, it being lent on 60 days and to be returned at the end of that time. -As a memorandum of the transaction a note for $11,000, payable one day after date, was given on March 26, 1886, by James M. Danner and Michael Schall. This note was drawn by Mr. Souder. Accompanying the certificate of stock was a power of attorney to transfer the same in blank, and was given to James M. Danner. It was a printed form and was signed by Mrs. Souder.” The date was filled in by Mr. Souder, also the number of shares and name of the bank, and the paper was witnessed by him. It appears that while the husband originally objected, yet the [382] drawing of the note, the filling up the blank in the power of attorney and the witnessing it, justify the conclusion that he did finally consent to the transfer and delivery of the stock by his wife. He witnessed that it was “ signed, sealed and delivered ” in his presence. It is not possible that he intended when he thus witnessed her execution and delivery that he did not assent thereto. His assent to the execution and delivery of the assignment and power of attorney is therefore manifested by his signature as a witness. In Brown’s Appeal, 94 Pa. 367, where the wife certified that a new judgment should take precedence of one held by her, in order to secure a loan for her husband, the instrument was witnessed by him, and it was held to be an executed certificate which operated as a release of her prior right of lien. It is contended that as appellant’s husband did not unite with her in the execution of the assignment and power of attorney, the holders in pledging the stock were not clothed with an apparent title, and, under Leiper’s Appeal, 108 Pa. 383, the appellee is not entitled to be protected in its title. But in that case there was no evidence upon the instrument of the husband’s assent and nothing to indicate it, and Mr. Justice Trttnkby said: “ The powers of attorney signed by Mrs. Leiper not being accompanied by written evidence of the assent of her husband, prima facie were insufficient to vest the apparent title to the stock in Green. His right depended on oral and written evidence. Without oral testimony of Leiper’s assent, the writing of his wife passed nothing. They did not confer upon Green by a written transfer all the indicia of ownership of the stock; the written assent of the husband was wanting.” Again : “ The fact that Mary Leiper alone signed the powers was enough to warn purchasers or pledgees to ascertain whether she made the transfers with her husband’s assent.” In the present case, when the appellee made the loan and received the stock as a security, it found the assignment and power of attorney duly executed by appellant, the date in her husband’s writing, and his signature thereto witnessing hex-signing, sealing and delivery of the stock. This evidence of his assent was upoxx the instrument itself, and parol testimony was not necessary to establish it. The purpose of its execution was to make an assignment of the stock with power to make a [383] transfer upon the books of the bank, and, to consummate it, appellant’s husband witnessed it. To say that he did not assent to it, when he signed for that purpose, is to assert that which the act conclusively negatives. When the holders made the loan from this appellee they thus possessed all the indicia of title of the stock, and, if so, it will be protected in its title, obtained from them. In Wood’s Appeal, 92 Pa. 390, it is said : “ By commercial usage a certificate of stock accompanied by an irrevocable power of attorney either filled up or in blank, is in the hands of a third party presumptive evidence of ownership in the holder. And where the party in whose hands the certificate is found is a holder for value without notice of any intervening equity his title cannot be impeached.” The title to this stock, obtained by appellee, from its holders, clothed with ownership, is therefore unimpeachable unless it had notice of the claim made to it by appellant. While it is conceded that, when it made the loan upon this stock, it did so in good faith and without any knowledge of any claim, it is urged that the appellee was put5 upon inquiry, which is the equivalent of actual notice. As the holders, when they effected the loan from the appellee, were in the possession of the stock and had the written evidence of ownership, common prudence and ordinary diligence did not call for inquiry, and, under such circumstances, to require it would be to exact caution, without any reason for it. In Leiper’s Appeal, supra, it is said : “ Just here this case difers from Wood’s Appeal, 92 Pa. 379, Burton’s Appeal, 93 Pa. 214, and other cases controlled by like principle, wherein the transferees not only found the possessors of the stock from whom they purchased, clothed with written evidence of ownership, but no circumstance to put them ou inquiry.” While there was nothing in the execution of the assignment and power to put appellee upon inquiry, the fact, that the ownership established by the indicia of title possessed by the holders, was dated nearly two years previous to the loan, cannot be said to be either a ground of suspicion or a cause for inquiry. As the appellant had executed the assignment and the power of attorney and as her husband had assented thereto as shown by the instrument itself, it was not a matter of significance against the title, whether they did so many months previously, but on [384] the contrary was in. favor of it, because indicative of an unquestioned ownership and an acquiescence in the same for a length of time. For these reasons this decree is afiirmed.