Brown v. Union Bank

Merrick. O. J. James Brown, the plaintiff, being a creditor (to a very large [544] amount) of Peter Lapice, among other things, to secure himself took a pledge of three hundred shares of the stock of the Union Bank. Pickersgill & Co. having obtained judgment against Sylvian Peyroux el al.; Lapice,beingoneof the firm, issued an execution on the same, and on the fifth day of March, 1850, seized upon the stock as the property of Lapice. The bank stoek on the 22d day of March, 1850, was adjudicated to Levi Pierce, Esq., per account of James Brown, for thirteen dollars per share, hut, ho refusing to comply, it was, with the written consent of Levi Pierce, dated 27th day of March, 1850, as attorney for James Brown, re-offered for sale. On the 23d day of March, four days previous to Mr. Pierce’s letter, James Brown filed his third opposition to the Sheriff sale, and claimed the proceeds of sale under his act of pledge. Shortly after the filing of the third opposition, viz: on the sixth day of April, 1850, the stoek “was adjudicated to James Sager, for account of the firm of Sager, Gardner & Co., at the price and sum of twelve dollars per share, making the sum of three thousand six hundred dollars.” To this part of the return, the Sheriff appends on the return of the writ on the 15th day of November, 1851, the following, which “amount (the price) the purchaser never paid: Mr. Frey, the cashier of the Union Bank, having positively refused to permit me to transfer the said shares on the books of the bank to the purchaser, I therefore say nothing was- realized by the adjudication made on the 6th day of April, 1851.” (1850). The opposition of James Brown, in the case of Pickersgill & Co. v. Sylvain Peyroux & Co., was decided in June, 1851, and judgment signed on the 8th day of November of that year, maintaining his opposition and decree'ng that “ the Sheriff pay over to the opponent the nett proceeds of the three hundred shares of the Union Bank stock sold under execution herein, after the payment of the costs.” Pickersgill S Co. appealed to the Supreme Court, and the judgment of the lower court was affirmed with costs. On the third day of July, 1852, James Sager, through the agency of a Notary Public, tendered the amount of his bid to the new Sheriff, and demanded that he should make out a certificate of the adjudication in their favor, which the Sheriff declined to do, as he knew nothing personally of the affair. It appears that Gardner, Sager c6 Go. were the agents of Pickersgill & Co. On the 9th day of July, 1852, P. M. Lapice directed the Union Bank to pay to James Brown the dividends upon the stoek, and to transfer the stock upon the books of the hank to him, as pledgee and purchaser of the stock, and at the same time notifying the hank that the adjudication to Gardner, Sager & Co, on the 6th of April, 1851, (1850,) had become null by the abandonment of the purchase and the return of the writ. The suit is against the bank to compel the payment of the dividends and the transfer of the stock. Gardner, Sager & Co. were cited by the barik’in warranty. Judgment was rendered in their favor, and Brown lias appealed. The court is of the opinion: 1st. That the letter of Levi Pierce, Esq., as the attorney of James Brotan, the pledgee of the stoek, wherein he expressly authorized the Sheriff to proceed to the re-sale of the stoek under the execution, was a waiver of all objections to the sale, if any existed, and the adjudication of the stock to Gardner, Sager & Go. was legal. [545] 2d. That the stock being so legally adjudicated to Gardner, Sager & Co., their interest could not be divested without a neglect or refusal to comply with the terms of sale on their part; that the holding the money in their own hands, they being the agents of Pickersgill & Co., during the pendency of the opposition, without objection of any of the parties, cannot be construed into a refusal to comply with the sale; that the refusal of Frey, the cashier of the Union Bank, to transfer the stork on the books of the bank was not a fault attributable to Gardner, Sager & Co., and that the Sheriff’s return of the writ was without influence on their rights, because the mere act of adjudication by 1he Sheriff had invested the purchasers with title; and the writ, to the extent of the seizure made under it, had performed its office by the sale, and its return afterwards was a matter of course. Perkins v. Dickson, 4 Rob., 418. Judgment affirmed.