Morton v. Preston

• Decision Date: 11 January 1869
• Citation: 18 Mich. 60
• Court: Michigan Supreme Court
• Parties: Emeline S. Morton, administratrix, etc., v. David Preston

18 Mich. 60

Emeline S. Morton, administratrix, etc., v. David Preston

Supreme Court of Michigan

January 11, 1869

Heard October 23, 1868 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

This was an action of trover brought to recover damages for the conversion of certain shares of stock.

Judgment was rendered in favor of the defendant below.

The facts are stated in the opinion.

Judgment of the court reversed, with costs, and a new trial ordered.

D. J. Davidson and A. Pond, for plaintiff in error:

1. Although the property represented by the certificate in question be considered as being situated in the state of New York, where the corporation exists, yet the plaintiff may maintain this action.

a. Upon grant of letters, the administrator is clothed with the legal title to all the personal property of the intestate including choses in action: Beecher v. Buckingham, 18 Conn. 110; Perkins v. Stone, 18 Id. 276.

b. This title takes effect by relation at the time of the death of the intestate, and the administrator may maintain an action for a wrongful intermeddling with the estate occurring prior to grant of letters: Fisher v. Young, Bulst., 268; 9 Wend. 302; 2 Hill 181.

c. This legal title extends to the personal property and choses in action of the intestate situated without the state: Shultz v. Pulver, 11 Wend. 363; Perkins v. Stone, 18 Conn. 270; Rand v. Hubbard, 4 Metc. 252; Hutchings v. State Bank, 12 Id. 422; Swarez v. Mayor, etc., of New York, 2 Sand. Ch., 173; Brown v. Brown, 1 Barb. Ch., 189; Peterson v. Chemical Bank, 32 N. Y., 21; Evens v. Tatem, 9 Serg. and Rawle, 258; Swearingen's Exr. v. Pendleton, 4 Id. 392; McNamara v. Dwyer, 7 Paige 239; Guilick v. Guilick, 23 Barb. 92.

The executor or administrator represents the person of the intestate, and, so far as the title of personal property is concerned, stands in his stead, being his "assignee in law:" Shultz v. Pulver, 11 Wend. 363.

d. The rule prohibiting foreign executors or administrators to prosecute or defend in their representative character, without the previous ceremony or qualification of probate and letters, rests upon a mere personal disability. Courts simply withhold their aid in enforcing the title of such foreign administrators, by reason of their solicitude to protect the rights of creditors and legatees resident in the jurisdiction in which the assets are found: Doolittle v. Lewis, 7 Johns. Ch., 51; Holmes v. Remsen, 4 Id. 472; Thorne v. Watkins, 2 Ves. Sen., 35.

2. The defendant, by the transfer to him under the circumstances shown by the record, obtained, as against the plaintiff, no title, legal or equitable, to the certificate of stock in controversy.

a. The certificate was not so indorsed as to pass the legal title by delivery.

b. It did not come to the hands of the defendant with this indorsement upon it, under such circumstances as to estop any of the heirs of Julius D. Morton to whom the certificate was issued, from denying that the title, legal or equitable, passed to him.

The certificate was indorsed, as shown, and delivered to Wm. D. Morton, not to sell or transfer to the defendant or to any one else, but for the sole purpose of transmitting to Buffalo. He had so transmitted it, and thus the express authority conferred upon him by the other heirs was at an end.

Hence, the defendant can claim nothing against the other heirs, upon the ground of any authority expressly given to Wm. D. Morton.

And as the indorsement carried with it no evidence of title, he can claim nothing upon that ground.

c. The plaintiff, in her character as administratrix, is not estopped from denying that the title, legal or equitable, passed to the defendant.

All she did was to indorse with her own name the certificate of stock, for the purpose of enabling it to be transferred upon certain contingencies, which never happened, to some one, other than the defendant, and the defendant obtained possession of it with this indorsement upon it, without her knowledge or consent, and without any intention on her part to transfer the title to him: Wilson's Admx. v. Hudson, 4 Harrington 168; Doe dem. Hornby v. Glenn, 1 Adol. and Ellis, 49.

3. The defendant having converted the certificate, which represents the title to the property in question, to wit, the stock, is liable as for a conversion of the stock.

Any interference with or control exercised over property under a claim of right, inconsistent with the rights of the owner, is a conversion.

The defendant claims the right to retain, and did retain the certificate, which was the only evidence of title to the stock, upon the ground that he was entitled to it as the owner of the stock, and in disposing of the certificate, claimed and assumed to dispose of the stock, and has thus assumed an interference with the property inconsistent with the rights of the complainant, and is guilty of a conversion of it.

It is well settled that trover will lie for the conversion of a chose in action, such as a promissory note, bond, title deed and certificate of stock, and the measure of damages is the value of the property represented by such chose in action: Bradley v. Gamelle, 7 Minn. 331; O'Donoghue v. Corby, 22 Mis. (1 Jones), 394; Webber v. Davis, 44 Me. 147; Gibbs v. Chase, 10 Mass. 128; Miller v. Baker, 1 Met. R., 31; Common v. Hillier, 11 S. C. L. R. (Rich.), 193; Anderson v. Nichols, 28 N. Y., 600; Clowes v. Hawley, 12 Johns. 484; Parry v. France, 2 Bos. and Pull., 451; Robbins v. Packard, 31 Vt. 570; Stone v. Clough, 41 N. H., 290; Murray v. Burling, 10 Johns. 170; Bowling v. Nash, 10 Cush. 418; McCombie v. Davis, 9 East, 538.

Walker & Kent, for defendant in error:

1. It is now settled that the title to stock, as between the parties, may be transferred by a transfer of the certificate indorsed in blank: Com. Bk. v. Kortwright, 22 Wend. 348; N. Y. & N.H. R. R. Co. v. Schuyler, 34 N. Y., 30; Mandlebaum v. North Am. Minn. Co., 4 Mich. 465.

2. In this case the plaintiff and other persons entitled to the estate of J. D. Morton, by indorsing the certificate in blank for the purpose of a sale, and by intrusting it to Wm. D. Morton, gave him an apparent authority to pledge the same, and they are as much bound by his act as though they had expressly assented thereto: Ex parte Swan, 7 Com. Bench (N. S.), 400; S. C., 7 Hurlstone and Nor., 601; Davis v. Bradley, 24 Vt. 55; Booth v. Bruce, 40 Barb. 114; State B'k v. Hastings, 15 Wis. 75; 16 La. An., 127; 15 Mass. 389; Story on Agency, 127.

3. The heirs and distributees of an estate, where there are no debts, may settle it and dispose of the personal property without administration; at least they can pass a title which shall be good against themselves: Babbitt v. Bowen, 32 Vt. 438; Taylor v. Phillips, 30 Id. 238; Kilcrease v. Shelby, 23 Miss. 161; Reid v. Butt, 25 Geo. 28; 29 Id. 585.

The case of Cullen v. O'Hara, 4 Mich. 132, will be cited as sustaining a contrary doctrine, but we submit that so far as it does this, it should be overruled.

4. The taking out of letters of administration by plaintiff related back to the transfer of the certificate in question and legalized the same, even though otherwise void: Alvord v. Marsh, 12 Allen 603; Priest v. Watkins, 2 Hill 225; Giles v. Churchill, 5 N. H., 337; Mayner v. Ryan, 19 Mis. 196; Vroom v. Van Horne, 10 Paige Ch., 557; Cross v. Tellington, 2 Murphy 6; Whitehall v. Squire, 1 Salkeld 296; Vaughan v. Brown, Andrews, 333; Carlin v. Vernon, 5 Durn. and East, 590; 8 Johns. 98, 125; Givens v. Higgins, 4 McCord, 286; 15 Mass. 325.

5. If the transfer to defendant of the certificate was void, then defendant has converted nothing but the certificate itself, and not the shares it represented, and the damages suffered are only nominal: 2 Taunt. 439; 7 Serg. and Rawle, 285.

6. The corporation which issued the stock in question exists only by virtue of the laws of the state of New York, and every transfer thereof is regulated only by the laws of that state: Black v. Zacharie, 3 How. 511.

The plaintiff is administratrix of the estate of J. D. Morton only in Michigan. Her authority would not be recognized in New York; hence she has not the legal title to the stock in question.

OPINION

Graves J.:

The plaintiff in error brought trover in the court below against Preston, to recover damages for the alleged conversion by him of a certificate for fifty shares of stock of the Buffalo & Detroit Transportation Company, and which certificate, and the stock represented by it, Mrs. Morton claimed to have belonged to the estate of her late husband.

It appeared in evidence on the trial, that Mr. Morton died intestate in this state in February, 1865, leaving his widow the plaintiff, and three children, namely, J. Sterling Morton, William D. Morton and Emma Morton, all of full age, him surviving. It further appeared that after the death of Mr. Morton, the certificate in question was found among his papers and taken possession of by his family. The estate not appearing to be indebted, no step was taken to administer upon it at the time, and the children mutually agreed that Mrs. Morton and her daughter Emma should occupy the homestead and receive and use the income of the estate for their support, so far as necessary, and preserve the property; and that upon the death of Mrs. Morton the estate should be divided among the children. It having been subsequently thought advisable to convert the stock in question into money in order to invest the proceeds in real estate security, the widow and children, to effectuate that object, in August or September, 1865, placed their names upon the certificate, and caused their indorsements to be attested by two witnesses. The...