White v. Rankin

• Decision Date: 19 June 1890
• Parties: WHITE v. RANKIN ET AL.
• Court: Alabama Supreme Court

8 So. 118

90 Ala. 541

WHITE v. RANKIN ET AL.

Supreme Court of Alabama

June 19, 1890

Appeal from circuit court, Colbert county; H. C. SPEAKE, Judge.

The court, in its general charge, charged the jury as follows "When the jury received the execution in favor of plaintiffs against the defendant Boyleston, it became a lien upon all the property of said defendant situated in the county. Under our statute the shares of the stock levied on by the sheriff are liable to execution, and hence the receipt of the execution by the sheriff created a lien in favor of plaintiffs on said shares of stock so levied on. The claimant says he has an equitable title to said stock, and that the same should not be sold for the satisfaction of plaintiffs' debt. If you believe, from the evidence, that Boyleston subscribed for the stock for the claimant, White and that the money paid thereon was the money of White, the claimant, then I charge you that this would create an equitable title in claimant to the stock; but in order that this equitable title should prevail over plaintiffs' lien it is necessary that you should find that before the said lien attached the defendant had transferred upon the books of the company the stock to claimant, or that plaintiffs, or their agents or attorneys, had notice of the existence of White's equitable title." The claimant objected to that part of this charge from the sentence commencing "but in order that this equitable title should prevail," and duly excepted. The claimant asked the general affirmative charge, and several others, which were refused by the court, and duly excepted to, but it is not necessary to set them out here. There was judgment for plaintiffs, and claimant appeals, and assigns as error the rulings of the lower court on the evidence and the charges.

Kirk & Almon, for appellant.

J. B. Moore, for appellees.

CLOPTON J.

The court committed no error in refusing to receive oral evidence that McNab, who signed the execution, was not the clerk of the circuit court of Barbour county at the time it purports to have been issued. The clerk being a commissioned officer, the court was authorized and bound to take judicial notice that he was clerk, and also of his term of office, when it commenced, and when it expired. Cary v. State, 76 Ala. 78; Bishop v. State, 30 Ala. 34. If the cognizance extends beyond actual knowledge, the judge may resort to any authoritative sources of information, and inform himself of the fact in any way he may deem best in his discretion, but is not required to receive oral evidence to disprove a fact the existence of which is judicially known to the court.

Appellant interposed a claim to 10 shares of the capital stock of the Sheffield & Tuscumbia Street Railway Company, which were levied on under execution issued on a judgment obtained by appellees against J. C. Boyleston. The evidence on the trial of the right of property shows that the stock was subscribed for by Boyleston in his own name, and was so registered on the books of the corporation at the time of the levy of the execution, but that he subscribed for it by request of and for the claimant. Only two calls or assessments on the stock were made, the first being paid by Boyleston with the money which he owed White, and the other by White himself. The stock not having been fully paid up, no certificate of shares has been issued. The question is whether on these facts the lien of the execution prevails over the equity of claimant the plaintiff in execution having no notice thereof. The levy having been made, and the claim interposed, before the Code of 1886 went into effect, the question must be determined by the statutory provisions as found in the Code of 1876. They are, however, substantially the same in both Codes. In the absence of the statute, shares in private corporations, being intangible and regarded in the nature of choses in action, are not amenable to levy under execution. To remedy this defect in the law, a statute was enacted, declaring: "The shares or interest of any person in any corporated company are personal property, and transferable on the books of the company in such manner as is or may be prescribed by...