Dutton v. Connecticut Bank

Waite, J. The only question now submitted to our consideration, is, whether the plaintiff is entitled to the relief prayed for in the bill. The defendants brought their suit against Joseph Wood, attached eight shares of the capital stock of the Hartford Bank, standing in his name upon the books of the bank, and having [497] obtained iugdment against him, caused those shares to be , , soid upon tneir execution. The plamtiti claims to the avails arising from that sale. He admits, that the stock was Originally the property of Wood, but claims it bv virtue c J 1 nni ■ J ■ , 1 f l j j or an assignment. 1 his assignment was made, and lodged in the probate office for record, before the attachment; but no transfer of the stock was made to the plaintiff upon the books of the bank ; and it is not now insisted, that the defendants had any actual notice of the assignment before the attachment. The validity of the plaintiff’s title must depend entirely upon the effect to be given to the record of the assignment in the probate office. The charter of the bank provides, that the stock “ shall be assignable and transferable according to such rules as shall be instituted in that respect, by the same.” The bank has established such rules according to the provisions of the charter. Does the statute respecting assignments by insolvent debtors for the benefit of their creditors, make the record of such assignment in the probate office supersede the transfer upon the books of the bank, in conformity with the by-laws of the corporation; or is it necessary to the perfection of the plaintiff’s title, that such transfer should be made ? It cannot be claimed, that the mere execution and delivery of the assignment would transfer the legal title to the stock. If it can have any such effect, it must arise from the record of the assignment. But in our opinion, no such effect was ever contemplated by the legislature. The object in requiring the assignment to be lodged in the probate office, was, to lay the foundation for the subsequent proceedings in the court of probate, and to give notice to the creditors of the insolvent debtor of the pio-vision made for them. He may assign for their benefit, not only his personal estate, but his lands. But in order to transfer the latter, he can only do it by a deed, accompanied by certain formalities. It must be witnessed by two witnesses, acknowledged before some magistrate, and recorded in the records of the town where the lands are situated. But the statute has given no directions respecting the execution of deeds of assignment by insolvent debtors. They must, however, be executed in such [498] manner as to transfer the specific property áttempted to be assigned, or be accompanied with other instruments sufficient for that purpose. Thus, if land is assigned, it must be executed and recorded in such manner as the law requires for the conveyance of land, or be connected with a deed duly executed and recorded, or the legal title to the real estate will not pass. So, if the assignment embraces stock in a corporation, it must be executed in the manner required by law for the transfer of such stock, or be accompanied with some other instrument adapted to the conveyance of such stock, or the title will not pass. An attaching creditor is not bound to look beyond the books of a bank to ascertain whether his debtor has made any assignment of the stock standing in his name. The books of the corporation is the appropriate place to determine the ownership of the stock. The stock, in the present case, at the time of the attachment, stood in the name of Joseph Wood, upon the books of the corporation. The legal title, therefore, remained in him. No legal assignment or transfer of the stock had been made, at the time of the attachment. The plaintiff furnishes no sufficient evidence that the defendants had actual knowledge of any intent on the part of Wood to transfer the stock to the plaintiff, at that time ; and consequently, in' our opinion, he has failed to shew either a legal or equitable title to the stock attached. But again ; it is not only a rule of equity, but a provision in our statutes, that a party shall not be permitted to sustain a bill in chancery where he has adequate remedy at law. Here, the plaintiff claims nothing but the recovery of a sum of money, the avails of the stock sold. Why not bring an action of assumpsit for money had and received ? That form, of action resembles a bill in equity, and will generally lie whenever the defendant has received money to which the plaintiff is in justice and equity entitled. ;> Lord Mansfield says, that “ where goods are taken in execution, which are not the property of the person against whom the execution is taken out; the owner may waive the trespass, and bring his action for the amount for which the goods were sold.” Lindon v. Hooper, 1 Cowp. 419. Were the plaintiff entitled to the avails of the stock, we see [499] no necessity of resorting to a court of chancery to recover them. Our advice, therefore, is, that the bill be dismissed. In this opinion the other Judges concurred, except Sherman, J., who gave no opinion, having been of counsel in the suit. Bill dismissed.