Porter v. Tudor

Church, J.

Porter, the plaintiff, as the first attaching creditor of Philo Dickinson, obtained a preferable lien upon the bank shares attached. This lien afterwards expired, by reason of Porter’s neglect to levy the writ of execution, which followed from the attachment, within the time prescribed by law. But he claims, nevertheless, that as against the defendants, he has an equitable lien upon the four shares standing in the name of Delia Dickinson, by virtue of a transfer of the same to him, made by Beach, under the power of attorney for that purpose, executed by Philo Dickinson, in execution of an arrangement into which the defendants, Sigourney and himself had entered. And whether the plaintiff acquired an' *423fight to these four shares under that power and the execution thereof by Beach, presents the first and chief question for consideration.

It appears from the facts found by the superior court, that when the arrangement between the attaching creditors was made, and when the power of attorney was executed, there were standing on the books of the Phoenix Bank in the names of Eccrard B. Dickinson and Julia Ann Dickinson, minor children of Philo Dickinson, more than seven shares of its stock. To determine whether Beach executed the authority conferred upon him, by the power of attorney made by Philo Dickinson, in transferring to the plaintiff fóur shares of said stock standing in the name of Delia Dickinson, the wife of said Philo, it is only necessary to refer to the power itself. Dickinson constituted Beach his attorney to transfer to the plaintiff, as he says, “seven shares of bank stock out of twelve shares standing in the name of my children, Julia Ann, Everard B. and Delia Dickinson, I being the parent and lawful guardian, and having full and legal power to give this authority to said Beach, and said children being minors under the age of twenty-one years.” It is very obvious from the language thus used, that Dickinson, in giving the power, acted only for others, and not for himself *, and in no other character or capacity than as parent or guardian of his children. When describing the twelve shares, from which the seven shares of his children are to be taken, he describes them as twelve shares standing on the books of the bank in the names of Julia Ann, Everard B. and Delia Dickinson; and as matter of description this was true. But when he speaks of the seven shares to be transferred, he speaks only of the shares of his children ; because he refers only to his power to convey as being that of parent or guardian, and not as a power belonging to him, as husband, or in his own right as owner of the bank stock ; and he avers a fact, which it was necessary should exist, to give him even a colourable right to convey, that his children were minor» under the age of twenty-one years. From this view of the power of attorney, I think it evident, that Beach derived from it no authority to transfer to the plaintiff the four shares of stock standing in the name of Delia, the wife of Dickinson, and which did not in fact belong to his children.

*424The other powers executed at the same time, to enable Beach to convey to Sigourney two shares, and to the defendants three shares of said stock, were in the same form, and conferred upon Beach no power to transfer td either of said creditors the shares belonging either to Dickinson or his wife,

These creditors of Dickinson made their arrangement respecting the distribution of the twelve bank shares, under a misapprehension of the rights and power of Dickinson over the shares standing in the name of his children. They probably supposed, if these shares did not in truth belong to him, yet as parent and guardian he could transfer them. In this they were mistaken. As parent, he could not dispose of the property of his children; and as guardian, he could not do so, for the payment or security of his own individual debts to creditors, who had knowledge of the facts. Kline v. Bebee, 6 Conn. Rep. 494. Genet v. Tallmadge, I Johns. Ch. Rep. 3. Field v. Schieffelin & al. 7 Johns. Ch. Rep. 150, Miles v. Brydon, 3 Pick. 213.

Subsequent events showing that the shares standing in the names of the children were in fact the estate of the children, the attaching creditors afterward transferred them back again, leaving only the shares standing in the name of Delia, to be the subject of contention. And as to these the plaintiff claims, that he had, by his first attachment, acquired a preferable lien ; that he relinquished it only in fulfilment of an agreement regarding the whole twelve shares, including these, to which agreement the defendants were parties; and that the defend ants, in violation of that agreement, pursued their demand against Dickinson to judgment and execution, and by a levy and sale, appropriated to themselves the entire avails of the shares standing in the name of Delia Dickinson. Under these circumstances, the plaintiff supposes, that although ho acquired nothing by virtue of the transfer of the shares by Beach ; yet that the defendants ought in equity to restore him to his original priority of claim upon these shares. A:>..: this claim of the plaintiff presents the second question for consideration.

The plaintiff, having lost his legal preference, by neglecting to pursue his attachment, and having acquired nothing by the pretended transfer of Beach, stands like every other creditor of Dickinson, who may have suffered by his insolven-*425ey, unless it be true, that he has been defeated of his legal or equitable claims upon the four shares in question, by some act. or neglect of the defendants, of which a court of equity can take cognizance. Büt I cannot perceive wherein he has been thus defeated.

The arrangement made between the plaintiff', Sigourney and the defendants, regarding the security of their respective claims against Dickinson, by the distribution of the bank shares among themselves, was not induced, by any act or representation of the defendants. It was made in good faith ; and there was no concealment of any fact, of which either parties had knowledge. It was agreed, to be sure, that all parties should suspend the further prosecution of their attach-nients ; but this was rather the consequence than the cause . of the arrangement ; and the consideration of this agreément entirely failed, and that too without any fault of the (defendants. All parties acted upon the supposed validity of the security afforded by the transfer óf the bank shares by Beach; and therefore, it was, that the plaintiff and Sigour-ney suffered their liens to expire, before they knew that the act of Beach conveyed nothing ; and the defendants would have done the same, had not this discovery been made before it was too late for them to proceed under their attachment. At a time, then, when the plaintiff had ceased to have any claim upon the estate in question, the defendants proceeded to sell it ; and by this act the plaintiff has lost nothing ; for he-had no interest in the estate to lose. And if the defendants had, as the plaintiff claims they ought, suffered their lien also to expire, the plaintiff, by this, would neither have saved nor gained any thing. The only consequence would have been, that these bank shares, now saved to one of the parties to this arrangement, would then have been lost to all of them, and left to the attachment of some other and more vigilant creditors of Dickinson.

I

Besides, the chief purpose of the agreement regarding the distribution of the bank shares, was, that each attaching crerh itor should receive a portion. But to grant the prayer of this bill, would defeat this object, by bestowing upon the plaintiff the whole of what the parties intended should be divided between them. And if the court supposed, that the four shares in question could, upon any principles of equity, be now ap*426portioned, it seems clear, that it cannot be done under this to which all of the persons interested are not parties.

lam, therefore, of opinion, that there is nothing erroneous in the decree of the superior court.

Daggett, Ch. J. and Peters and Bissell. Js., were of the samé opinion. Williams, J., having an interest in the question, declined giving any opinion.

Judgment affirmed.