
    Chapman, Assignee v. The New Orleans Gas Light and Banking Company et al.
    Where certain shares of the stock of a hank were attached,- and/on a judgment rendered in favor of the plaintiff in attachment, wore sold tinder execution, an iniervenor in the attachment suit, who claimed tho stock, and was subsequently adjudged to he the owner of it by a superior tribunal, on a writ of error sued out by him, but which did not suspend execution, cannot recover against the bank, the value of tho stock, with profits, dividends» &c., for permitting the marshal to transfer the stock to tho parchas or of the judicial sale, and for refusing to transfer the shares lo him on the ground of their sale and transfer to the the purchasers at the marshal’s sale; nor will the fact that the stock was sold without appraisement, at a time when an appraisement was not considered necessary, though subsequently adjudged to be so, subject them to liability, there having been no neglect on their part, and they being justified in believing that' the public officer acted according ftt" his duty.-
    Whatever effect the want of appraisement may have’on a sale of moveable property under*' execution between the parties to the sale,'third persons cannot consider such a sale as null on that account.
    from the Third District Court of New' Orleans, Kennedy, I.
    
      Lockett, Goold, and Roselius, for the appellant.
    
      L. Janin, for the defendant’!
    
      Chymes, for the parties cited in warranty.
   The judgment of the court (Slidell, f. not sitting, being a stockholder in bneof tho'banks,)' was pronounced by

Eustis, C. J.

On the 4th of May, 1841, a suit was instituted in the laté Commercial Court of New Orleans, by James W. Zacharie & Co. against Francis C. Black, in which certain shares of the stock of the Gas Light and Banking Company and of the Carrollton Railroad and Banking Company, were attached. Black appeared in the suit, and on his application it was removed from the Commercial Court to the Circuit Court of the United States for this district. 'Black pleaded that, prior to the attachment, he had assigned the stocks attached by a deed of trust, for the benefit of all his creditors, to James U. Chapman of South Carolina, who is the plaintiff in the present suit! After the removal of the suit by attachment, Chapman filed a petition of intervention, and became a party to it-^ iii order to protect the interests secured under the deed of trust. The plea of Black, the defendant, the object of which was to release the stocks from the effect of the writ of attachment, was overruled by the court on the 13th of' January, 1842, and iii March of that year a verdict was rendered in favor of Zacha— ríe Sf Co. against Black, for the sum of $8,000’, and' judgment rendered on it accordingly. From this judgment Black took his writ of error to the Supreme Court of the United States, but gave a bond for costs only. Chapman’s petition was dismissed By the same judgment, and he also took his writ’ of error, which was allowed as a supersedeas ; but the judge afterwards rescinded that part of his order which gave effect to the writ of error as a supersedeas, on the ground of the insufficiency of the bond given by Chapman. The Supremo Court of the United States reversed'the judgment of the Circuit Court, and remanded the case with directions to award a venire facias de novo, on the ground that the Circuit Court erred in ruling that there was a sufficient debt established by'tlie evidence to maintain the attachment, and also in directing the jury that the delivery of the stock was not complete, unless the transfer was entered upon the books of the banks. The case is reported in 3d Howard, 509, and was decided in 1845.

On the 11th of April, 1842, the plaintiffs, Zacharie Co., took out an execution on the judgment against Black, and the stocks before mentioned were seized under it, and after due advertizements were sold by the marshal. At this sale Jules Lavergne became the purchaser of one hundred shares, G. Didier of ninety, James W. Zacharie of three hundred and ton shares of the Gas Bank stock, and James W. Zacharie 8f Co. of the six hundred shares of the Carrollton Bank stock, all those stocks having been attached in the suit, and claimed in the petition of intervention of the present plaintiff, Chapman.

The present suits, which have been consolidated and argued together, are instituted by Chapman against the two banks, under the assignment from Black alleged to have been made previous to the attachment suit, for the purpose of compelling the transfer and delivery of the stocks thus attached and sold, or, on default thereof, for the recovery of their value, with the profits, dividends, &c.

The defendants sat up the marshal’-s sale under -those proceedings as a defence _ to the action, and call the purchasers, and the late marshal of the United States in warranty, to defend the suit, and ask such judgment against them as may be rendered against tire defendants. The parties called in warranty pleaded the general issue, with an averment that that they are not bound to indemnify the defendants. The District Court rendered judgment in favor of -the defendants, and the plaintiff has appealed.

On the 22d of March, -1847, the case of Zacharie Sf Co. v. Blach having been remanded to .the Circuit Court, judgment was rendered in favor of the defendant as well as of the intervenor against the plaintiff, and these suits wore instituted in April following. The district judge decided the case on the effect he gave to the judgment of the Circuit Court, which was afterwards reversed, as we have seen, on a writ of error. I-Ie considered that by -that j-udgment -the -right of Zacharie ¿y Co. .to attach the stock standing in Black’s name-on the .books of the banks, .and Chapwtan’s title to them under the assignment, were directly adjudicated upon; that, if that judgment had never been appealed from -nor reversed, the validity of the marshal’s sale could mot be questioned; and that, in that respect, there is no difference between the consequences of no appeal having been taken, and one having been taken which did not operate as a supersedeas, as in the present case.

It appears to ns that the only question to be examined under the issue made between the plaintiff' and the defendant is, as to the responsibility o.f the latter for their acts as stated in the petition. They refused to deliver .and transfer to the plaintiff the stocks assigned to Rim by Black,'on the grounds that they were attached, and were afterwards sold .under execution; the validity o tírese grounds must, therefore, he considered.

The Supreme Court of the United States determined that the stocks were not liable to the attachment of Zacharie 8f Co., but passed, by the assignment, -to-the plaintiff in this suit—not, however, with respect to tho legal title but the oquitable title, which became .thereby vested in the assignee, so as to bind the attaching creditors as well as the banks, as soon as .they had notice thereof, and -that the attaching creditors in this case had notice previous .to the issuing of the writ of attachment.

In’relation to .the non-delivery, or refusal .of .transfer on .the books of the banks, previous to the service of .the attachment, which was made on the 4th of May, 1841, each of the banks acted on reasons applying to itself alone.

The Carrollton Bank hold the stock in pledge for a stack note of Blade, and until that note was paid .the transfer of the stock could not be insisted on. The refusal of the Gas Bank to transfer the stock is given in the letter of its cashier., of date the 20th of April, 1841. The power of attorney from Black to transfer the Gas Bank stock was in favor .of the cashier, but he, not considering it sufficiently formal, returned it, with a request that another might be sent in conformity with tho conditions lie suggested. At all events, he refused to act as the attorney of Black in transferring the stock, and gave immediate notice of his refusal to the present plaintiff. He was not bound to accept the mandate, and no responsibility can attach to the bank for hi's refusal to act under it. Nor do we find any act amounting to a default on the part of the Gas Bank, in refusing .to transfer and deliver the stock to the plaintiff', up -to the time of the attachment; and after that, we think, the attachment was a sufficient reason for its non-delivery -and refusal to transfer. Indeed, it seems, from the view the Supreme Court °f tbe United States took of the matter, that the transfer or non-,transfer of the stocks on the books of the banks precludes no right whatever, inasmuch as it was ° ' the equitable interest in them, and not the apparent title on .the books, which constitutes fhe ownership. The case does not appear to have b.eep prepared with a yiey to any responsibility as to mere delay on the part of the banks in relation to the transfer and delivery; the effect of their acts touching the sale under execution remains only to be considered. In relation to that ground of responsibility ¿the doings of each are similar, and can be examined together.

We have seen that Black was a party defendant in the Circuit Coprf of the United States, and that Cliapman, the plaintiff in this suit, was a parfy by his intervention.

The petition of intervention set up the ownership of the stocks, and ¡averred that .they wer,e wrongfully levied upon by the attachment, and prayed ip ponclupion .that it be dismissed, and .the petitioner decreed to be the owner thereof under ,tho assignment from Black, &c. The Circuit Court decreed that judgment b.e entered in favor of Zaeharie Sf Cq., plaintiffs, against the defendant, Francis C. Black, for .the sum of $8,000, with costs of suit, and that the petition of intervention of fames Chapman, claiming the stocks of fhe Carrollton and Gas Banks attached in this case, be dismissed at his costs. On tjiis judgment a fieri, facia.s was issued, and the stocks attached were levied pp.on and .sold. After the sale, the marshal transferred the stop,lm to the purchasers on th,e books of the banks.

It is urged by fhe counsel for the plaintiff that this judgment decreed no privilege on the stocks attached. This is true; but Black having appeared in the Circuit Court, the judgment against him was personal, and a fierj, facias was lawfully issued op it. The claim of Chapman having b.een determined on in favor of the attaching creditors, the stocks were necessarily subject to be seized as Black’s property and sold as such, unless the execution was stayed. Tho action of the banks appeals to be confined to their permission to the marshal to transfer the sto.cks fo the ¡several purchasers on their bppks. The subsequent reversal of the judgment of the Circuit Court does not affect their responsibility, which seems to be confined .to this act. Under the circjimstanc.ep, we do not ,s.ee hpw the banks co.uld hav.e acted otherwise. True they had notice of the .antagonist claims of Chapman? but those claims had been adjudicated upon, and he had suffered execution to isspe, when he could have stayed it by giving security. He thought proper n.of to do so, but to leave tho propess of the court to its result. We do not think the defendants were bound to impede,or arrest it, and in authorizing the public officer to do his duty in carrying into effect a judicial sale by having the use of thoir transfer book for the purpose of vesting the legal title in the purchasers of tho stocks, wo think they were justified. They were not bound to assume the responsibility .towards the purchasers of retarding or defeating their purchase. . But it is contended by counsel that the sale under execution is a nullity, in consequence of their having been no appraisement made of the stocks, and tho cases of Phelps v. Rightor, 9 Rob. 531, and Stockton v. Stanbrough, 3 Ann. 390, are referred to in support of that opinion.

That appraisement of moveable property was necessary to the validity of a sale tinder execution, was first determined in the .case of Phelps v. Rightor, in 1845. It is admitted by counsel that until this decision, sheriffs did not consider it necessary to appraise moveable properly, and noyer appraised it; such at least was -flae uniform practice in New Orleans. Whatever effect the want of appraisement may have on a sale of moveable property, under execution between the parties to the sale, yet third persons cannot consider a sale of moveables as null on .that account.

When the stocks were advertized for sale the plaintiff, by his attorney, gave notice to the banks of his prosecution of his writ of error, but of nothing else, .except of his persisting in his claims under his assignment. Had, the attorneys applied to the Circuit Court to arrest the proceedings for want of an appraisement previous to the sale, there is reason to believe that the sale would have been arrested and an appraisement made; but it is' obvious that neither of the ¡parties thought it material. We do not think that, as matters now stand, to wit, the sale of the stocks left entire and no attempt made by the plaintiff' to disturb it, or to have any recourse whatever against the purchasers, the banks can be held liable for permitting the transfer to be made by the marshal, although the sale was made without .any appraisement.' They were justified in believing tba'j ,the public officer acted (according to his duty, and it was a fair presumption omnia rite acia fuisse. Besides, by the admission, there was no neglect on their part, .and they merely gave ¡effect to the ac,ts of ,a public officer, in the forms in which they had been usually vested.

But we are asked ,tp give judgment agajnst the purchasers of the stock; anc{ it is said that the stocks purchased by Zacharie and Zacharie Sf Co. are still in .their names on the books of the banks. This suit is not against them; it is against the banks on the issues we have stated. Zacharie <§• Co. are cited in warranty to defend the banks in this suit, but the jilaintiff has prayed for no judgment .against them. Why the sales should be permitted to stand on the case presented by the plaintiff, is a matter resting exclusively with him. If the price be an adequate one, it is his interest that they sho.uld remain in force; but, in the mean time, to make the banks liable to him for ¡the stocks, .or their value, would, it seems to us, be the height of injustice. Judgment affirmed.  