delivered the opinion of the court, October 5th, 1885.
These are several appeals by different parties from the same decree, which, as they involved the same question, were heard together.
.The learned counsel for the appellants have with much candor propounded the question for decision, as one which includes in it the fact of an understanding at the time of the transfer of the stock in question, that the same stock should be re-transferred at the close of the season, and that this was enforced by a delivery of the stock by the transferee to the transferer, together with an irrevocable power of attorney to make sucia transfer. It is as well, perhaps, to add, what is quite undisputed, that the ticket of admissioia for the season was to be delivered to the transferee, and retained by him, while the stock certificate was to be retained by the transferer from the beginning, in other words during the whole life of the contract. And on the other hand the stock was to stand ostensibly upon the books of .the corporation in the name of the transferee. These considerations relieve the case of any inquiry as to the intent of the parties in making the transaction. The intent lies upon the surface and is practically averred in the statement of the question.
Beyond dispute the purpose, as well as the fact of the arrangement, was to clothe one person with a right to free admission to the Academy, and an apparent, not a real, ownership, of the shares essential to the existence of that right, and another person with the real ownership of the same stock at the same time.
So long as such an arrangement concerns nobody but the parties to it there is perhaps nothing to affect its legitimacy. But when the legal or equitable rights of others are affected, and the intervention of the courts is solicited, the question *519arises how are they to treat the transaction. According to its real or its seeming character ? According to the actual, or according to the apparent facts only, of the situation? There are, it is true, exceptional times and occasions when even the tribunals adopt and act upon fictions. But these are for benign and innocent purposes, rendered necessary by the due administration of justice. In all other circumstances courts, whether of law or equity, must base their action upon the actual facts of the cases which come before them, so nearly as these can be ascertained. In the case now before us there was perhaps a sufficiency of facts and of probable legal right to warrant the appellants in undertaking their transactions. The peculiar character of the privilege which they sought to utilize was such that they might with perfect propriety avail themselves of it with pecuniary advantage, if practicable, without the least imputation of moral or social delinquency. We see no occasion for the slightest intimation or belief of any dishonorable or fraudulent purpose on the part of the appellants in these transactions. But we must deal with these according to their real facts. It cannot be doubted that both at law and in equity the title to the shares in question was in the transferrers at all times. They held the certificates of stock and they held also the executed powers of attorney for its transfer. • The transferees had not purchased the stock. No money was to be paid to them when the re-transfer was made upon the books. They were to do nothing in order to complete the re-transfer. That which they did buy, to wit, tickets of admission, they received, held and used. They have no right, and did not and could not, under the contract, claim any right, to anything more than this. They could not assert any ownership of any kind, legal or equitable, to the stock which the certificates represented. Why then shall we treat them as ■owners or holders? Because it is said the stock stood in their names on the books of the corporation. But the whole effect of that fact is evidentiary only. It is some evidence, prima facie evidence, of ownership. But this prima facies sives way instantly to proof of the actual ownership. As a mere technical fact it is of no avail against an opposing possession of the certificate, together with an executed power of attorney for its transfer. The force of the fact of registry disappears, therefore, and is nugatory in the face of the other facts. Of course there are circumstances in which the registered title is sufficient for certain purposes. Upon it votes may be cast and dividends paid, and in special situations innocent purchasers may be protected. But these cases are exceptional and do not in any degree affect the present. Nor do we see how the understanding that the re-transfer shall not be made till the *520end of the season can change the question of ownership. It is but a postponement of the time when the holder of the certificate may change the registered title from another to himself. It does not affect the actual title conferred by the real ownership of the stock,by the possession of the certificate, and by the executed and delivered power of attorney. It is but an agreement that the one prima facie fact of registry shall remain as it is, to wit, a prima facie fact only, during the stipulated period. After all has been said, and all theories exhibited and exhausted, we must fall back to the inquiry, who is the real, actual owner and holder of the stock, and to that question there can be but the one answer. For by the terms of the law which authorizes the issue of tbe tickets they can only be given to holders of stock. How can we possibly say that this means persons who seem to be holders, or who are apparently holders, or who possess one indicium of holdership ? How can a court, construing the law, say it means anything else than actual, real, true holders ? It is not possible in any view of the case. We are not dealing with a shadow but with a substance. This is not a controversy over possible rights acquired innocently under a deceptive appearance of title, or in spite of facts which an opposing party is estopped from asserting. On the contrary the parties dealt at arms length with their eyes open, and virtually attempted to create a position by means of which they could defeat the substance of a statute by a nominal adherence to its letter. Between themselves this might avail, and equity might refuse to hear either complaining of the other. But between them and others, strangers whose rights become implicated, the question is entirely different. These latter may stand upon their strictest rights, and may set up whatever obstacles are within their reach against interference with them. It seems to us that is this case. The plaintiffs are co-stockholders with the defendants of whose acts they complain. The Master has found, upon sufficient testimony, the fact of the injury in the manner described in the bill. It is not an injury which can be compensated in damages, it is continuing in its character, and it is the invasion, in fact at times the practical deprivation of a right. These considerations bring the case within equitable cognizance under well established rules. We quite agree with the Master and the learned court as to the propriety of the decree awarded, and therefore affirm it.
As to the question of costs we do not think they should be imposed upon the plaintiffs, who are successful in their suit, on the theory of laches. It is true the practice of issuing tickets of admission in similiar circumstances had long prevailed. But as it worked no practical injury to the plaintiffs *521they were scarcely subjected to a duty to litigate for their rights. The practice only prevailed to an extent sufficient to affect the rights of the plaintiffs for two or three years before suit brought, and we do not think a delay during such a period of entering into litigation which most persons wisely dread, can be called laches. On the other hand the two principal defendants might well say that they did but follow an example which had been set and followed for a number of years without objection. Of course they might nevertheless incur the penalty of costs, but the discretion of the court below has imposed them upon the corporation, which at least sanctioned and participated in the objectionable practice, and we do not feel warranted in interfering with that discretion.
Decree affirmed and appeals dismissed at the cost of the appellants.