Hill v. Pine River Bank

Bartlett, J. The defendants have properly abandoned their objection to the form of the action. Angell & A. Corp. 385; Pinkerton v. M. & L. R. R. 42 N. H. 424; Arnold v. Suffolk Bank, 27 Barb. 424. If Hodgdon originally held the shares in trust for Oliver Hill, yet they.were afterwards transferred by Hodgdon to Mrs. Hill, and there was evidence upon which the jury might have found that this tranfer was assented to by Hill. Prom this transfer, prima fade, no trust would result to the husband, but it is presumptively a provision for the wife. Dickinson v. Davis, 43 N. H, 647; 2 Story Eq. sec. 1204; and if this presumption may be rebutted, see 2 Story Eq. sec. 1203, n.,and if the reception of the dividends and the agreement for the transfer of the shares by Oliver Hill may be evidence tending to show that the transfer to Mrs. Hill was not intended as a provision, still it is not conclusive,as the husband may have received the dividends with the wife’s consent, and she may have agreed to convey her shares as her husband had proposed; and, besides the fact that the transfer was by Mrs. Hill alone, there was other evidence tending to show that the husband treated the shares as hers. The evidence not being conclusive, the jury might have found that the transfer of the shares to Mrs. Hill was intended as a provision for her, and, therefore, this verdict by consent will not' be disturbed upon this point. Melcher v. Flanders, 40 N. H. 139. No question is raised as to whether the certificate to Mrs. Hill was issued under the proper authority, and, indeed, both parties now found their respective positions upon it and make their claims by virtue of it. Whatever right of Ken the defendants might have had at the time of the transfer to Mrs. Hill, they surrendered when they issued a certificate to her, which, in express terms, made the shares transferable when the KabiKties of the holder to the bank were paid. If they had a right to refuse to issue a certificate or allow a transfer until Oliver Hill’s indebtedness to them was discharged, it was nevertheless in their power to 309 waive that right and to allow the transfer and issue' the certificate without insisting upon such payment, quite as much as it is in the power of one, having a right by virtue of a lien to detain a chattel until a debt due him is paid, to give up the chattel to the general owner without payment and thus waive his lien. Walcott v. Keith, 22 N. H. 209; Brackett v. Hayden, 3 Shepl. 347; Spaulding v. Adams, 32 Me., 212; Clement v. Little,42 N. H. 570; Hale v. Insurance Company, 32 N. H. 299; Insurance Company v. Keyser, 32 N. H. 313. Upon the issuing of the certificate to Mrs. Hill her legal title to the shares became complete, Pinkerton v. M. & L. R. R.; and, as we have seen, the jury might have found that the beneficial interest was also in her, and, therefore, upon this verdict by consent, she must be taken to have been the real owner of the shares, having the legal title and beneficial interest, as well as the holder of the shares and certificate. The Bank v. Laird, 2 Wheat. 390, differs from the present case; for there, by the act of incorporation, the shares were not transferable until the debts of the holder to the bank were satisfied, unless the president and directors should direct to the contrary; and though the certificate issued declared the shares transferable on the surrender of the certificate, the president and directors of the bank in their answer deified that they had ever waived the right of lien, or directed any transfer to be made to the assignors which should stipulate to the contrary. In this State, it is enacted by the statute of 1849, that "the free sale of shares in the stock of any corporation in this State by the owners thereof, shall not be in any way or manner restricted by the by-laws of such corporation, and all such by-laws heretofore or hereafter made shall be deemed and taken to be absolutely void.” Laws ch. 860, sec. 2. The corporation could not, therefore, by by-law impose any restriction on the free sale of shares by the owner; but here the certificate was in the form authorized by the by-law, and stands as duly issued by the defendants, and it was accepted by Mrs. Hill,and therefore it may be immaterial whether the by-law was valid or not, as the certificate may have been good by way of contract. Angell & A. Corp. 337 & 8. However this may be, the question is not material here, for if the restrictive clause in the certificate were void, the defence upon this ground would fail; and if it be valid, then, as Mrs. Hill was not indebted to the bank at the time of her assignment to the plaintiffs, that assignment transferred to them the right to the shares. It seems assumed by both parties in their brief, that the transfers to and by Mrs. Hill were made in Maine, where her domicile was, and, although the case does not state the fact, yet, as it contains evidence upon which the jury might so have found upon this verdict,such must be taken to have been the fact. By the law of Maine, Mrs. Hill’s assignment thus made would be sufficient to transfer her interest in the shares to plaintiffs, Story Con. Laws, secs. 279 and 316, a. j for the form of the transfer is sufficient under our laws, Angelí & A. Corp. 521, Story Conflict of Laws, sec. 383 ; and her capacity to contract would be governed by the law of Maine, Story Confl. Laws, secs. 66 and 66 a. and 103; and this conflicts with no policy of our law. If the assignment to Mrs. Hill was fraudulent, or was invalid under the 310 laws of Maine, as against her husband’s creditors, still it is good until avoided by them, Jones v. Bryant, 18 N. H. 57; and the defendants, instead of avoiding it by attachment or otherwise, or asserting a lien, have, if they ever had any lien, expressly waived it by their contract with Mrs. Hill. As the only right of the defendants to refuse a transfer was dependent upon their alleged lien, we need not examine various' other questions that have been argued in this case. There must be judgment on the verdict, and, according to the provisions of the case, an auditor must be appointed to assess the damages.