Newell v. Williston

W. Allen, J. The Pub. Sts. c. 106, § 30, provided, in regard to manufacturing corporations, that “ shares may be transferred by the proprietor by an instrument in writing under his hand, which shall be recorded by the clerk in a book to be kept for that purpose,” and that the purchaser named in the instrument so recorded shall be entitled to a new certificate on surrendering [243] the old one. The Pub. Sts. e. 105, § 24, provided, that “no sale, assignment, or transfer of stock in a corporation shall affect the right of the corporation to pay any dividend due upon the same, or affect the title or rights of an attaching creditor, until it is recorded upon the books of the corporation or a new certificate is issued to the person to whom it has been transferred.” The memorandum with the letter attached was clearly no record of an assignment of the stock. No instrument was presented to be recorded, nor any request made by the plaintiff that any instrument should be recorded; and there was no intention or attempt on the part of the officers of the corporation to record any. All the parties apparently intended to rely upon the issuing of the new certificate, and not upon an instrument of assignment, for the transfer of the legal title to the stock, and understood that the instrument could not be perfected by filling the blanks until it should be used as a power of attorney to obtain a new certificate, in accordance with the by-law and the statement on the face of the certificate that a transfer could be made only on the books of the company, in person or by power of attorney," on surrender of the certificate. Besides, there was no instrument which could be recorded,. An assignment, to be recorded, must be an instrument sufficient, to pass the legal title. The incomplete instrument which the plaintiff held may have given him an equitable interest in the stock, and the right to complete the instrument and perfect the title; but it was not a legal assignment, and, if spread upon the record, would not be the record of a “ sale, assignment, or transfer” of the stock, or operate to transfer it. Boyd v. Rockport Steam Cotton Mills, 7 Gray, 406. Johnson v. Somerville Dyeing & Bleaching Co. 15 Gray, 216. The plaintiff contends that the attaching creditor had such notice of the plaintiff’s right that he cannot set up the want of a recorded assignment. The statute is express, that no sale or assignment shall affect the rights of an attaching creditor until recorded; that is, until an instrument of assignment is recorded. The attaching creditor, in this case, had knowledge of the memorandum and letter, and had such notice only as can be inferred from that knowledge. If this affected him with notice [244] of the facts and of the plaintiff’s rights, he knew that there had been no transfer of the stock, and no record of an assignment, that there was no assignment which could be recorded, and that the plaintiff had no right unless that of an equitable assignee, with power to make a legal assignment and transfer. The statute says that these things shall not affect the rights of an attaching creditor, and, by plain intendment, makes it immaterial whether he knows of them or not. It gives him the same right as to stock thus situated that he would have as to other kinds of personal property which had been sold by a contract good between the parties, but without delivery. Bill dismissed-