Johnson v. Hume

DOWDELL, J. Tlie appeal in tliis case is taken from a final decree rendered on a submission upon the pleadings and proof. Under the same state of facts as here shown by the pleadings and evidence, it was decided, in the. case of Birmingham Water Works Company v. Hume, 121 Ala. 168, that the common law marital rights of the husband over tlié wife’s personal property existed. The material inquiry in this case is whether tlie husband had reduced to possession the 11 1-4 shares of bank stock in question, which the wife owned and held at the time of the marriage, during the existence of the marriage relation, and before its dissolution by the decree of the chancery court. Where this right of the husband exists, it is well settled that in its exercise no assent or concurrence on the part of the wife is necessary, and when so exercised, and the property reduced to his possession, it becomes absolutely his for any and all purposes. The intention with which the husband acts in acquiring the possession of the wife’s property, that is to say, whether his purpose is to claim and exercise his marital right, should be considered in connection with his acts. In the present case, however, concerning the question of purpose and intention in action, on the undisputed evidence, there can be no doubt that it was the hushand’s intention in what he did, to claim and exercise his marital right as to the 11 1-4 shares of stock. Moreover, if it were material, the intention of the wife that the stock should be' and become the property of the husband, before and at the time she transferred the certificate by her endorsement, is clearly shown by the evidence. There is nothing in the record to support the theory that what the husband did was with any intention or purpose on his part to acquire and hold passession of-the. stock in trust for his said wife. Nor anything to sustain the charge of fraud or undue influence in his conduct. The uncontroverted evidence shows that Mrs. Johnson, the wife, within a short time after the marriage, voluntarily assigned a.ncl delivered the certificate of stock to her said husband to-be absolutely his, aud that [570] lie so received it. This action, however, could effectuate nothing more as to the ownership of the stock, than the husband might have accomplished by reducing the chose to his possession in the exercise of his conimon law marital right, but it does go to illustrate the subsequent acts of Mr. Johnson as to his purposes and intention. The principle defense is, that the stock not having been transferred on the books of the defendant bank before the dissolution of the marriáge bonds between J. T. Johnson, the husband} and his wife, B. C. Johnson, by the decree of the chancery court, there was no reduction to possession by the husband, and, therefore, the stock remained the property of Mrs. Johnson after the decree of divorce. And it is further urged that the complainant Hume, to whom J. T. Johnson had assigned and transferred the certificate of stock, was not a purchaser for value without notice. The facts show that after J. T. Johnson received the certificate from his wife, he placed the same in the hands of Robbins & Gammon for collection, that they ■filled in the blank transfer on the back with their names, the blank being in the transfer signed by the wife when she delivered the certificate to her husband, and after-wards Robbins & Gammon retransferred to J: T. Johnson, when said J. T. Johnson sold and transferred by endorsement this certificate with other stock in other corporations to the complainant Humes for the gross sum of $2,700, taking the said Hume’s notes therefor. Thereupon the said Humes requested the defendant bank to transfer the said 11 1-4 shares of stock to his name upon its books, which was refused, and this suit to compel said transfer was instituted. All of this transpired long before the institution of the divorce proceedings in the chancery court by Mrs. Johnson against her husband. It is further shown that Hume has paid $1,800 on his notes given for the purchase price of said stock, with other stock, and only $900 of said debt remains unpaid, though it is not shown when such payment, was made, whether before or after the commencement of the divorce suit, but under our view of the case, we do not think this important. [571] In Rice v. McReynolds, 8 Lea (Tenn. Rep.) 36, it was said: “As to the bank stock, it being a chose of peculiar nature, the reduction to possession is effectual, not by the collection of money paid for the stock, or which it represents, but by transferring the stock in his own name with the purpose of making .it his own, or more accurately, such transfer works the result, unless it be clearly shown that it was done in trust for his wife or for some other purpose than to vest the title in himself.” “We take it to be'too clear for argument that the husband having the right by virtue of his marriage, to reduce the stock to possession, had also the right to use the necessary means of effecting that right, and this with or without the consent of his wife.” It may be here observed that in the case at bar, the domicile of the husband and wife was in the State of Tennessee, and was such at the time of the occurrences above stated as to the several transfers of the certificate. In the case of Rice v. McReynolds, supra, which case was afterwards reaffirmed in Hardwarden v. Deyermier, 96 Tenn. 619, no reference is made to any transfer on the books of the corporation. In Slaymaker v. The Bank, 10 Pa. State Repts., where a wife owned certain bank shares before marriage, and her mother bequeathed her ten shares after marriage, in March, 1840, Skinner, the husband, transferred twelve of those held prior to the marriage to one Wirt, who in August, 1840, retransferred them to Skinner and wife, after which Skinner made a deed of assignment, and in 1842 the assignees sold and transferred to a stranger six of the shares which had been transferred to Wirt and by him retransferred — Mrs. Skinner died in 1847, leaving her husband surviving her, and the plaintiff Slaymaker was her administrator — the question being, whether the plaintiff as administrator was entitled to the shares so transferred by Wirt; the court gave judgment for the defendant bank. As to the remaining four shares which were transferred to Wirt and retransferred by him, the court said: “This transaction, we think, was such ah assertion of ownership, such a reduction [572] of the stock into possession, as to bar the title of the wife to the moiety of the shares. * * * From this it follows, that as the four shares belonged to him at the time of the assignment, they pass to his assignees as already noted in Skinner’s appeal against the bank,-202.” The contention of counsel for appellant, that there could be no reduction to possession without a formal transfer of the stock on the books of the corporation, is opposed in principle to what was held in Winter v. Gas Light Co., 80 Ala. 549, and in Campbell v. Woodstock Iron Co., 83 Ala. 351, that as between the parties the legal title may pass without a transfer of the stock on the books of the corporation. It is beyond question that the husband in the case before us, had the legal right to have the transfer made upon the books of the corporation, and that this right passed by the sale of the stock and transfer of the certificate by him to the complainant Hume. It is equally clear that it was the legal duty of the defendant bank to make said transfer on its books upon demand. This demand was made upon the defendant bank, and when made the complainant’s right to have the transfer on the books of the stock to his name clearly existed, and existed at the time of the filing of his bill to compel the transfer. Under the authorities above cited, the intention of the husband to finally and absolutely appropriate the stock as his own being clearly shown, our conclusion is that his acts amounted to a reduction to his possession, and furthermore, that the complainant was entitled to relief. The averment in the bill of the pledge of the stock to Robbins & Gammon, was one of several different acts averred to show the principal fact — the reduction to possession by the husband. The failure to show the pledging as averred, the other acts amounting to a reduction to possession being proven as alleged, does not constitute a fatal variance between the allegations and the proof. J. W. Beard, as cashier of the defendant bank, was made a respondent to the bill. He was not a necessary party, ail'd might very well have been dispensed with as a party. It is perfectly plain [573] that he had no interest as an individual to defend, and it is not to be seen how any interest or right of his, in the failure to bring the bill to issue as to him before final submission can possibly be effected. The president of the bank, Earl, was also a respondent, and the bill Avas at issue as to him, and it Avas sufficient for the execution of the compulsory process of the court under the decree, that it be directed to him. The decree Avill be arffimed.