Alderton v. Conger

Mr. Presiding Justice Windes delivered the opinion of the court. To reverse the decree in this case appellant has appealed, and claims, first, that it was error to allow any interest to complainants; second, that no title passed to him by the assignment of the stock, it not being transferred upon the books of the association; third, that he was entitled to have the value of the stock set off against the amount claimed by complainants; fourth, that the levy of the’ attachment writ and execution against Conger gave the.creditor a prior-lien; fifth, that Conger could not recover costs, interest or solicitor’s fees because of appellant’s tender to him of the difference between the value of the stock and the amount of all the notes; and sixth, that the court erred in allowing complainants to amend their bill and substitute one new complainant. The first contention is not tenable. The statute (Starr & C., Ch. 74, Sec. 7) requires that the defense of usury be claimed in the pleadings, which was not done. See also Goodwin v. Bishop, 145 Ill. 421. The second, third and fourth contentions of appellant are not, in our opinion, tenable, for the reason that the sale of the stock to appellant by Eomaine M. Conger appears to have been in good faith, for a valuable consideration; the stock actually delivered to appellant and assigned to him by Conger, in writing indorsed on the back of the certificate, long before any claims of the association or an attaching creditor intervened. It fails to appear that there was due to the association any amount from Eomaine M. Conger at the time he sold and assigned the stock to appellant, and as to the attaching creditor, the statute (Hurd’s, Ch. 77, Sec. 52) provides that under the circumstances shown in this case the stock was not liable to be taken on execution against Conger. In the recent case of Rice v. Gilbert, 173 Ill. 348, in which certain stock was pledged to secure the payment of a note, the Supreme Court said, in construing this statute (which is an amendment to a previous statute, under which it had been held the judgment creditor would be preferred)., “ There is but one rational conclusion as to the meaning and purpose of that amendment, and that is, that it was to give more commercial freedom to transfers of stock for purposes of collateral security than existed before, and therefore the foundation for the holding in People’s Bank v. Gridley, 91 Ill. 457, no longer exists;” and held that a pledge of stock bjr mere delivery of the same, with notice to the corporation, passed the title to the pledgee as against an execution subsequently levied upon it. Moreover, if the title did not pass to appellant, still he could not set off the value of the stock in this case, because the stock transaction h'as no connection whatever with the notes or trust deed, and is therefore not a subject of set-off, unless there is some equitable circumstance which would make it proper. The only equitable circumstance alleged is that Eomaine M. Conger is insolvent, but this allegation is not sustained by the evidence. Quick v. Lemon, 105 Ill. 585, and cases cited; Clause v. Bullock P. P. Co., 118 Ill. 617. It follows from the foregoing that appellant’s offer to pay the notes, less the value of the stock, and his tender of $220, could not avail him on the matter of costs, interest or attorney’s fees. ■ The statute (Hurd’s, Ch. 7, Sec. 1) in regard to amendments gave the court full power to allow the amendment of the bill dismissing as to one complainant, Fenimore, and substituting in his stead Bomaine M. Conger. The amendment was a matter in the discretion of the court. From an examination of the only case cited by appellant under this point—Fairbanks v. Farwell, 141 Ill. 354—we are of opinion it does not sustain appellant’s contention. We are of opinion, however, that as the original complainant, Fenimore, wholly failed to make a case, and as he voluntarily dismissed his bill after the hearing before the master, who held that he had no equity as against appellant, it would be unjust to tax all the costs against appellant. Ho. costs appear to have been incurred after the hearing before the master. The decree will be affirmed, except as to the costs, as to which it will be reversed, with a direction' to the Superior Court to charge complainants in the amended bill with the master’s fees.