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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 591 The stock in question stood in the name of Paulina W. Kellogg, and the certificates issued by the banks of her title thereto were evidence of its absolute ownership by her.
There was nothing in them, or connected therewith, to show or indicate a trust in favor of any other person. Their production to the express company, with a power of attorney signed by her in the usual form for the transfer of stock in incorporated companies, warranted and justified it in making the loans it did on the assumption of such ownership.
The assignment of those certificates and the delivery thereof to the company, with the said powers of attorney, vested thelegal title to the stock in the company.
A transfer on the books of the banks was not necessary for *Page 593 such purpose. (Kortright v. The Commercial Bank of Buffalo, 20 Wend., 91, and the Commercial Bank of Buffalo v.Kortright, S.C., in error, 22 id., 348; McNiel v. TenthNational Bank, decided in Court of Appeals 1871, 46 N.Y.R., 325.)
The fact that Mrs. Kellogg was a married woman did not affect the title of the company thus acquired. Her coverture did not prevent the acquisition of property by her, and a purchaser thereof was not bound to inquire or ascertain how she obtained it.
If it be conceded that she did not hold it as her separate estate, her husband, in that case, might have asserted his marital rights and claimed it as his own, but that, under the circumstances disclosed in this case, would not invalidate or impair the right of the company. His agency in making the transfer would estop him from questioning it. (See Edgerton v.Thomas, 5 Seld., 40.)
It is, however, claimed that the defendant's title is affected by the judgment in the suit of Catharine K. Lietch and the plaintiffs in this action against John Kellogg and Paulina W. Kellogg, referred to in the complaint, on the ground that the stock in controversy was purchased during its pendency.
That claim or position is not available.
The facts alleged in the complaint do not show nor is it found by the judge who tried this action that a lis pendens was created by that suit.
The only allegation in reference to it is "that on the 29th day of November, 1861, the said Catharine K. Leitch and the plaintiffs in this suit commenced their action against the said John Kellogg and Paulina W. Kellogg, and duly impleaded them in respect of the said stocks, etc." There is no averment or any statement showing when the complaint therein was filed, and, by reference to the judgment record, it appears from the summons that it was not filed when that was served, and it is shown by the complaint itself that it was not verified till the 12th of March, 1862. The commencement of the action by the service of the summons did not create a lis *Page 594 pendens affecting third persons, not parties to the action. The filing of the complaint was necessary for that purpose. (See 1 Vernon, Ch., 318; Bouvier's Law Dict., title "Lis Pendens," 14th ed., vol. 2, 76; Murray v. Ballou, 1 Johns. Ch. R., 566, etc.; Murray v. Lylburn, 2 id., 441; Hayden v. Bucklin, 9 Paige, 512, 514; 4 Bouvier's Inst., 514, 516.)
It may also be stated, in this connection, that the complaint, after stating the claims of title by the defendant to the stock under the transfer of the scrip or certificates of stock, impeaches its validity on the sole ground that "neither the said John Kellogg nor Paulina W. Kellogg had any right or title thereto, and therefore could confer no right or title thereto to said Express company," and that the said stock was then the property of the plaintiffs; and the proceedings and judgment in that action appear to be stated as part of the plaintiffs' title, and not for the purpose of charging that the Express company was bound by the judgment. It is, however, unnecessary to pursue the inquiry. It is sufficient to say that the allegations in the complaint and the findings of the court are not sufficient to charge the company with constructive notice of the plaintiffs' rights or title, and it is expressly found that it had no actual knowledge of the pendency of the suit, or of any claim by the plaintiffs to the stock in question, or that John Kellogg was an executor and trustee under the will of Daniel Kellog, deceased.
Having arrived at this conclusion, it is unnecessary to consider whether the allegations in the complaint in that suit are sufficiently specific to charge third persons with notice of the plaintiffs' claim.
The judgment must, on the ground stated, be reversed and a new trial ordered, costs to abide the event.