Abels v. Mobile Real-Estate Co.

• Decision Date: 10 June 1891
• Court: Alabama Supreme Court
• Parties: ABELS v. MOBILE REAL-ESTATE CO., ET AL. PLANTERS' & MERCHANTS' INS. CO. v. MOBILE REAL-ESTATE CO. ET AL.

9 So. 423

92 Ala. 382

ABELS v. MOBILE REAL-ESTATE CO., ET AL.

PLANTERS' & MERCHANTS' INS. CO. v. MOBILE REAL-ESTATE CO. ET AL.

Supreme Court of Alabama

June 10, 1891

Appeal from chancery court, Mobile county; THOMAS W. COLEMAN Chancellor.

Fredk. G. Bromberg, for appellant.

Overall & Bestor, for appellee.

STONE C.J.

In this case there are cross-assignments of error. Mrs. Mary Abels the complainant, filed the original bill on the 24th day of October, 1889, against the Mobile Real-Estate Company and the Planters' & Merchants' Insurance Company. She alleged that the certificates for the stock in the Mobile Real-Estate Company, the subject-matter of this suit, were regularly transferred to her by George A. Pearce, as collateral security for a loan made by her to him. This transfer of the certificates by Pearce was accompanied by a power of attorney, properly executed, authorizing a transfer of the stock on the books of the company. The stock, however, was never actually transferred on the books of the corporation. The prayer of the bill is that the complainant be recognized by the Mobile Real-Estate Company as the owner of the stock, and that said company be decreed to issue to her certificates for the stock. The Planters' & Merchants' Insurance Company filed an answer, setting up its superior claim to the stock in question by reason of a levy and sale under execution in an attachment suit brought by it against said Pearce, at which sale this defendant became the purchaser. The Planters' & Merchants' Insurance Company asked that its answer be taken as a cross-bill against the complainant and its co-defendant, and prayed that the Mobile Real-Estate Company be decreed the owners of the stock, and that certificates therefor be issued to it. On final hearing, the chancellor decreed that the complainant was not entitled to the relief prayed, and dismissed her bill. He also dismissed the cross-bill. This decree is assigned as error by both the complainant and cross-complainant. The issue involved is whether Mrs. Abels, holding the certificates of stock, or the Planters' & Merchants' Insurance Company, claiming under a purchase at a sheriff's sale under execution founded upon an attachment, is entitled to the stock. The most important question involved, the answer to which determines the issue, is, who first legally asserted, or first took the proper steps to legally assert, the claim to the stock? The answer is found in determining whether the lien of the Planters' & Merchants' Insurance Company attached prior to the demand by Mrs. Abels, through her agent, for the transfer to her of the stock upon the books of the Mobile Real-Estate Company. Section 3280 of the Code provides: "The levy of an attachment or service of garnishment creates a lien in favor of the plaintiff." The lien thus created is inchoate, and is only rendered complete by the recovery of judgment. Bank v. Pinckard, 87 Ala. 577, 6 South. Rep. 364; 1 Brick. Dig. p. 162, §§ 105, 108, 109, 113. The evidence found in the record is in direct conflict as to the levy of the attachment upon the stock. Section 1673 of the Code declares that shares of stock in a corporation are subject to levy and sale under attachment, and directs the manner of making such levy by indorsement on the writ, and by giving notice to the custodian of the books of the corporation. The secretary of the real-estate company, the custodian of the books, testifies that no copy of the writ, no written notice, or other notice of the levy was served upon him; while, on the other hand, the deputy-sheriff, who made the levy, testified that on January 21, 1889, he levied upon the said stock, and gave oral notice thereof to the secretary. His indorsement on the writ recites notice to him. We are of the opinion that the preponderance of the evidence goes to show notice. The fact that the notice was oral cannot, under the statute, invalidate it. The statute simply says, "and giving notice," etc. If written notice was required, would not the statute have said "written notice" or "notice in writing?" The statute which requires notice to the defendant of the levy of an attachment requires that such notice "shall be given in writing." Code, § 2937. While we think written notice should be required, we can only be governed by the language of the statute; and, in the absence of such direction, we hold the notice of the levy sufficient, and declare that the attachment issued at the suit of the Planters' & Merchants' Insurance Company was properly levied on the stock in question. Code, § 1673; Martin v. Brown, 75 Ala. 442; Wade, Notice, § 831. The suit was prosecuted to judgment, and the stock so attached was sold under an execution issued on said judgment, and was purchased by the Planters' & Merchants' Insurance Company.

Was the stock transferred to Mrs. Abels, or was such a...