Morgan v. Thames Bank

Storrs, J. The bank stock, for the value of which this action is brought, having been regularly transferred, by the executor and trustee of Jeremiah Kinsman, deceased, the former owner, to his daughter, who was the wife of Benjamin Bacon, in pursuance of and agreeably to the terms of the will of said deceased, the title to it vested, on such transfer, in the said Bacon, and became liable to be levied on, as his property. No rule is better established than that personal property, accruing to the wife during coverture, including choses in action, vests immediately and absolutely in the husband, on the principle that husband and wife are but one in law, and her existence, in legal consideration, is merged in his. Fitch v. Ayer, 2 Conn. Rep. 143. Griswold v. Penniman & al. 2 Conn. Rep. 564. And there is nothing which we discover in the circumstances of this property, which delivers it from the operation of this general principle. On this point, therefore, the charge was unexceptionable. But we think that the court erred in charging the jury, that the plaintiff was not bound to prove a conveyance of the stock to him, by the officer, other than by such officer’s return on the execution. This would undoubtedly be sufficient proof of a transfer of ordinary personal estate, by a sale on execution ; no instrument of conveyance by the officer to the purchaser [103] being- made necessary by law, in such cases. But the statute & J J prescribing the manner of levying executions on rights or shares in the stock of any bank or other corporation, after pointing out the manner in which they shall be taken, posted and sold, directs, that the officer “ shall thereupon give to the purchaser an instrument in writing, conveying to him such rights or shares and, after further directing him to leave with the cashier, secretary or clerk, a true and attested copy of the execution, and of his return thereon, declares, that “the purchaser shall thereupon be entitled to all dividends and stock, and to the same privileges, as a member of such company or corporation, as the debtor was entitled to.” Stat. 65. tit. 2. s. 80; (ed. 1838.) The reason for requiring such written conveyance, in thesfe cases, probably arose from the peculiar nature of the property to be sold, which, being incorporeal, and not susceptible of manual delivery, could not be placed in the visible possession of the purchaser, like ordinary personal property. By this provision, it is necessary, in order to vest the title in the purchaser, not only that the shares should be sold to him, but that the officer should also convey them to him, by á written instrument : for it is upon a performance of these acts that, by the express terms of the statute, he becomes entitled to the stock, and to the privileges of a member of the corporation. This being the only mode, by which the property can be transferred, under an execution, to the purchaser, it results, that he must, in order to shew his title, prove, that these requisites have been complied with. One of these requisites being such written instrument of conveyance, that can only be proved (no question of secondary evidence, in consequence of its loss, being raised,) by the production of the instrument itself. For it is an obvious principle, that where the law points out a particular mode, by which alone property shall be transferred, a compliance with it must be shewn; and where a written instrument is required, the production of it cannot be dispensed with ; nor can oral evidence be substituted for it, excepting where it is necessary to resort to it as secondary evidence. Thus, a conveyance of land, a will, or an agreement under the statute of frauds, can be proved only by the production of the written instrument, which the law requires, in such cases; and a defect in them cannot be sup [104] plied by parol evidence. Baylis & al. v. Attorney General, Bul. N. P. 298. S. C. 2 Atk. 239, 240. Woollam v. Hearn, 7 Ves. 211. Stark. Ev. part 4. 602. 612. 995, 996. And we can see no more reason, in the present case, for dispensing with the production of the instrument, which is required to be given by the officer, than in the casé where a purchaser claims title to real estate under a collector, by whom it has been sold and conveyed by deed, for the nonpayment of taxes. On this point, we think that a new trial should be granted. Therefore, a decision on the other questions made, becomes unnecessary; and as" they are of great general importance, we are the less inclined to settle them here, since, if it should become necessary hereafter, we can have the benefit of a full court, which was not present when this case was argued. In this opinion the other Judges concurred, except Church, J., who was not present. New trial to be granted.