Wetumpka Bridge Co. v. Kidd

McCLELLAN, C. J. — -The assignment of demurrer that complainant has a plain, complete and adequate remedy at laAV is not insisted upon by counsel for appellant, and Avill not be considered here. It Avas not incumbent upon the complainant to negative notice on her part of respondent’s claims to the stock standing on the books of the bridge company in the name of Buyck. This is defensiAre matter. On tlm averments of the bill Buyck, for the purposes of the [245] levy and sale, ivas tlie owner of the shares of stock. Iiis title passed to the complainant by the sale, and she as the. present owner thereof is entitled to have the shares stand in her name on the company’s stock books. — Code, S T265. This means only that she has a right to have the stock registered as belonging to her, and this in substance is the prayer of her bill. The giving of notice of his action by the officer execut ing the writ to the custodian of the books of transfer is by statute made an essential part of the levy itself (Code, 1265), and the averment of the fact of levy made by the bill involves the averment that such notice was given. Under the statute it Avas only necessary for the bilí to aver that the stock Avas registered in the name of Buyek at the time of the levy. This averment for the purposes of the case as uoav presented, puts him in the attitude of being the true OAvner in the estimation of the statute. — White v. Rankin, 90 Ala. 541; Winter v. Montgomery Gas Light Co., 89 Ala. 544. And if he Aims not the true owner, it is for the defendant to traverse this averment of the bill, and shoAV that another was the owner or had a prior lien and that complainant had notice thereof. This bill is not bad for failing to negative the registration of respondent’s claims to the stock on the transfer books. The decree overruling the demurrer to the bill is affirmed. Affirmed.