Ferguson v. Paschall

• Decision Date: 31 March 1848
• Citation: 11 Mo. 267
• Parties: FERGUSON v. PASCHALL ET AL.
• Court: Missouri Supreme Court

11 Mo. 267

FERGUSON

v.PASCHALL ET AL.

Supreme Court of Missouri.

March Term, 1848.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

William Taylor and Alexander Ferguson filed their original bill in the St. Louis Circuit Court setting forth that Nathaniel Paschall on the 4th November 1839, made to Wm. Taylor his note for $1,500 payable sixty days after date-- that this money belonged to Taylor & Ferguson jointly, and the note was their joint property. That to secure the payment of said note, Paschall delivered to Taylor & Ferguson a certificate for ten shares of the capital stock of the St. Louis Insurance Company, on each share of which $59 had been paid--also a certificate for thirty shares of the St. Louis Floating Dock & Insurance Company, on which six hundred and thirty dollars had been paid; and also a certificate for ten shares of the stock of the St. Louis Perpetual Insurance Company, on each of which shares, one hundred dollars had then been paid. That at the same time Paschall executed his covenant in writing and under seal to said Taylor (which also enured to the joint use of Taylor & Ferguson), of even date, covenanting that if he did not pay the note above described at maturity, the stock should absolutely belong to said Taylor--and also covenanting in such case to make a transfer of said stock on the books of the several insurance companies to said Taylor, in the form, &c., prescribed by the charter and by-laws of the several companies, which transfers should be in full satisfaction of said note. The note was not paid at maturity, and was at Paschall's request several times renewed to Taylor & Ferguson jointly, and a very small payment was made in May, 1830 amounting to $134 70.

On the 25th January, 1840, Taylor & Ferguson advanced to Paschall fifteen hundred dollars more, for which he also executed his note to them at sixty days, and also placed in their hands certificates of stock to secure the payment of the same. They aver that default was made in the payment of the notes. That Taylor & Ferguson are ready and willing, &c., to surrender the said notes, and that they offered to said Paschall to do so, and requested him to transfer the stock according to his covenants, and that he has failed to do so. That Taylor & Ferguson were, and are the equitable owners of the seyeral shares of stock. That Paschall is insolvent. That after the delivery to Taylor & Ferguson of the certificates of stock above mentioned, and the making of the covenants to transfer the same on the books of the company, several executions were issued against Paschall; which were levied on the several shares of stock, as the property of Paschall, and under them the stock was sold to several persons, all of whom were made parties to the bill. That before the stocks or any of them were sold the complainants gave notice to each of the several companies of the transfer of the certificates and the covenant for the transfer of the stock itself, by said Paschall to them, and that at the sales by the sheriff aforesaid they gave notice to all persons of the premises, and all the foregoing facts were known to the purchasers of said stocks; and that the said stock has since been transferred by the purchasers to persons all of whom had notice of the premises. Copies of the executions, &c., are made exhibits in the cause. The bill prays that Paschall and all the insurance companies, and all the purchasers and holders of the stock be made parties and required to answer the bill--that the corporations be restrained and enjoined from transferring or permitting the transfer of the stocks, or any of them--that said stock may be transferred to them on the final hearing or the value paid, and for general relief.

To this bill a demurrer was filed and afterwards withdrawn. Wm. G. Pettus, one of the purchasers of stock, answered the bill for himself, and the other parties for themselves. Exceptions were filed to the answers of all except Pettus--and replication to that. The exceptions were sustained and there was a final decree in favor of complainants. Upon motion for a rehearing, the court set aside this decree, and gave leave to complainants to file an amended bill. In this amended bill, Ferguson as surviving partner of Taylor & Ferguson, varies the statement of the present holders under sheriff's sale of the stock in question, but not in such a manner as to affect the question presented on the record. It is also averred that the holders have received certain dividends for which it is prayed that they should account. To this original and amended bill the defendants demurred and assigned for causes of demurrer, 1st, that there was no equity in the bill; 2nd, that the bill was multifarious. This demurrer was sustained, the bill was dismissed, and complainant appealed to this court. The bill further shows that the shares of four of those companies were sold on executions on 8th January, 1841, and that the shares of the two other corporations were sold on other executions in different suits on the 26th January, 1841.CROCKETT & BRIGGS, and GANTT, for Appellant.

1. The bill presents no case for the equitable interference of a court of chancery. 2. The bill is multifarious.

First. In support of the first position it is said that since a court of equity will not generally entertain a bill for the specific performance of an agreement to transfer stock, the present bill shows no equity. In reply it is submitted that though this be generally true, it is only when there is an adequate remedy at law that a court of equity refuses to interfere in such cases. If the chattel which is the subject of the contract have a peculiar value (2 Story's Eq. Jur. § 715 to § 725, and cases there cited; 4 Ves. 497)-- or if there be any other reason why redress cannot be had at law, the reason of the rule fails. In the present case the bill avers that Paschall is wholly insolvent. The complainant must pursue the stock, or be remediless. 1 Sim. & Stu. 590.

Second. That the bill is not objectionable for multifariousness. See Story's Eq. Pl. §§ 271, 278, 284, 285, 287, and 530 to 539, inclusive; Campbell v. Maccay, 1 Mylne & Craig, 617, et seq.; Attorney General v. Cradock, 3 Mylne & Craig, 85,...