Scollans v. Rollins

• Decision Date: 17 May 1899
• Citation: 53 N.E. 863,173 Mass. 275
• Parties: SCOLLANS v. ROLLINS et al. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

173 Mass. 275

53 N.E. 863

SCOLLANS v. ROLLINS et al. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

May 17, 1899

COUNSEL

J.E. Hannigan, for plaintiff.

Roger F. Sturgis, for defendants.

OPINION

BARKER J.

The documents for the conversion of which these actions are brought are described in the bill of exceptions and in the several declarations as bonds of the city of Boston. Upon inspection of the copy which is part of the bill, although the documents bear upon their faces the words "Registered Bond," they do not appear to have been under seal. Each document certifies that there will be due from the city, payable at the office of the city treasurer on the 1st day of April, 1913, to William Scollans, the sum of $1,000, with interest at 4 per cent. per annum, payable on the 1st day of April and October in each year. Each also bears upon its face a statement that it is transferable only at the office of the city treasurer. From this it results that, whether technically bonds or promissory notes, the documents were not negotiable paper, and could not be made negotiable by any act or indorsement of William Scollans, the payee. When, intending to part with the property in the documents and in the rights of which they were the evidence William Scollans delivered them to the plaintiff in payment of a debt the property in the documents and in the rights passed to the plaintiff. When so delivered to the plaintiff, each document bore upon its reverse side a stamped writing, signed by William Scollans, and acknowledged by him before a justice of the peace to be his free act and deed. This stamped writing was of the following tenor: "Value received, I assign *** the within certificate of the city of Boston stock, and hereby authorize the transfer thereof on the books of the city treasury." These indorsements neither made nor purported to make the documents negotiable securities within the meaning of the law merchant. The documents remained in the same condition when they were stolen, or feloniously embezzled, by a person who delivered them in the same condition to a bank as pledgee, and when they were sold at auction by that bank to the defendants, who thereupon filled in with their firm name the blank in each indorsement, and presented the documents to the city officials for cancellation, and received in return new certificates payable to themselves. Under our decisions the property of the real owner of documents of the nature of those now in question is not devested by a sale to a purchaser in good faith and for value from one who has got them feloniously from the true owner, nor by any subsequent dealing of such a purchaser with the documents, but the property remains with the true owner from whom they were feloniously taken. The real ownership in such documents follows the general rule as to the ownership of chattels, the only exception to which is as to property which consists of the currency of the country, or securities which, by the law merchant, are negotiable. O'Herron v. Gray, 168 Mass. 573, 575, 47 N.E 429. See, also, Dame v. Baldwin, 8 Mass. 518; Jarvis v. Rogers, 13 Mass. 105; Id., 15 Mass. 389; Mason v. Waite, 17 Mass. 560; Wheeler v. Guild, 20 Pick. 545; Stanley v. Gaylord, 1 Cush. 536; Worcester County Bank v. Dorchester & Milton Bank, 10 Cush. 488; Riley v. Power Co., 11 Cush. 11; Wyer v. Bank, Id. 51; Chapman v. Cole, 12 Gray, 141; Gilmore v. Newton, 9 Allen, 171; Heckle v. Lurvey, 101 Mass. 344; Spooner v. Holmes, 102 Mass. 503; Hinckley v. Railroad Co., 129 Mass. 52; McCann v. Randall, 147 Mass. 81, 94, 17 N.E. 75; Bank v. Simmons, App.Cas. (1892) 201, 215; Bank v. Cady, 15 App.Cas. 267; Earl of Sheffield v. Bank, 13 App.Cas. 333; London & County Banking Co. v. London & River Plate Bank, 20 Q.B.Div. 232; Cole v. Bank, L.R. 10 C.P. 354; Crouch v. Credit Foncier of England, 8 Q.B. 374; Shaw v. Railroad Co., 101 U.S. 557; Knox v. Eden Musee American Co., 148 N.Y. 441, 42 N.E. 988; Barstow v. Mining Co., 64 Cal. 388, 1 P. 349; Power Co. v. Robinson, 52 F. 520. As the plaintiff is yet the true owner of the documents which the defendants have surrendered for cancellation, and for which they have in return received new certificates, payable to themselves, the defendants cannot sustain the verdicts which were ordered in their favor, except by showing that the evidence offered would, as matter of law, show that the plaintiff is estopped from setting up his true ownership as against them. Such an estoppel must bear looking at from two sides. The indorsements upon the documents, when the defendants took them, contained a blank the presence of which made it uncertain whether the payee had parted with his title. The presence of the blanks informed the defendants that the instruments passed to them must be other than they were to give the defendants a right to surrender them for cancellation, and to receive new certificates in exchange. Such blank transfers are consistent with the continued ownership of the person who has executed them, and are also consistent with the ownership of some other person than the bearer; and where they do not purport, in terms, to confer ownership upon the bearer, the most which can be predicated of them , in the absence of evidence of custom or usage, is that they are made in aid of the true title, and not to defeat it, and that they are to be used only to help the true owner in procuring for himself the right of registration and the other rights of which the documents so indorsed are the evidence. See France v. Clark, 26 Ch.Div. 257. There was no evidence in the present case that such certificates with blank assignments pass in fact from hand to hand, like negotiable instruments, without inquiry as to the right of the bearer to dispose of them. Without such evidence we cannot assume that these documents were "in order," so as to make the act of taking them without inquiry as to how the title, originally in the payee, had come down to the bank of which the defendants bought "the act of a reasonable man reasonably dealing with...