Kennedy v. Mary Lee Coal & Ry. Co.

• Decision Date: 26 June 1891
• Citation: 93 Ala. 494,9 So. 608
• Court: Alabama Supreme Court
• Parties: KENNEDY v. MARY LEE COAL & RY. CO. ET AL.

9 So. 608

93 Ala. 494

KENNEDY v. MARY LEE COAL & RY. CO. ET AL.

Supreme Court of Alabama

June 26, 1891

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Bill by John S. Kennedy against the Mary Lee Coal & Railway Company and others to have certain shares of stock of the company transferred to him upon its books, which shares he claims were the property of Mary Lee Boyle. Decree for defendants and plaintiff appeals. Affirmed. The complainant claims his right to the transfer under an alleged title which he acquired by purchase at a tax-sale, and transfer by the tax collector of Jefferson county to him, of all the right title, and interest of the said Mary Lee Boyle in and to said stock for a consideration of $54.77. The bill averred that the said 20 shares of stock had been levied upon by the tax collector of said county, and sold by him on the 4th day of October, 1889, for the payment of the taxes assessed against said Mary Lee Boyle for the year 1888; and that at said tax-sale the plaintiff became the purchaser thereof, paying the amount of taxes, fees, and costs. The chancellor sustained defendants' motion to dismiss the bill for want of equity, upon the following grounds: (1) That the said bill shows no ground for the relief prayed for, because the tax collector of Jefferson county had no authority, under the statutes of Alabama, to make a sale of Mary Lee Boyle's shares of stock; (2) that said tax collector had no authority to levy upon said shares of stock; (3) that said tax collector had no lawful authority to transfer said shares of stock to plaintiff, and that, by said attempted transfer to plaintiff, said plaintiff acquired neither a lawful nor equitable title thereto.

Kennedy & Hickman, for appellants.

Martin & McEachin, for appellee.

CLOPTON J.

The equity of the bill involves the authority of the tax collector to levy on and sell shares of stock in a private corporation for the payment of the delinquent taxes assessed against the owner. The authority is claimed under sections 540, 1669, and 1673 of the Code. Section 1669 declares "Shares or interests in the stock of private corporations are personal property, transferable on the books of the corporation in such manner as is required by the by-laws, or by the rules and regulations of the corporation." Section 540 requires the tax collector to proceed without delay, after the 1st day of January of each year, to levy on personal property of delinquent tax-payers for the payment of their taxes, and to sell the same after having given the notice prescribed by the statute. Though the modern decisions have relaxed, to some extent, the strictness of the earlier common-law rules respecting levies on personal property, still, as a general rule, it is essential to a valid levy that the officer have a view of the property, and assume dominion over it, or being it under his control, by such acts as would constitute him a trespasser but for the protection of the process, and so that he may have it present on the day and at the place of sale for delivery to the purchaser. Abrams v. Johnson, 65 Ala. 465; Goode v. Longmire, 35 Ala. 668. Shares of the stock of a corporation are intangible and incapable of manual caption and delivery; the officer cannot take possession or control for the purposes of a sale, and consequent delivery to the purchaser; so that at common law, being considered mere choses in action, they were not subject to levy and sale under execution. The declaration of section 1669 to the effect that they are personal property does not, proprio vigore, affix subjectivity to levy and sale under legal process. The statute authorizing, in general terms, the tax collector to levy on personal property, without providing any mode by which a levy may be made on intangible property of which he cannot take possession or control, must be...