
    Wetumpka Bridge Co. et al. v. Kidd, Extx. &c.
    
      Bill to Compel Transfer of Stock.
    
    1. 'Stock in incorporated company; is for purposes of levy the property of him in whose name it stands.- — Where a hill- in equity- is filed to compel a transfer of the stock of an incorporated company which has been sold under execution and purchased by complainant, it is not incumbent on complainant to negative notice on her part of respondent’s claims to the stock — he being other than the party in whose name the stock stands on the books of the company. This is defensive matter. For the purposes of the levy and sale the party in whose name the stock stands and who is defendant in execution was the owner of the shares of stock. His title passed to complainant by the sale, and she as the present owner thereof is entitled to have the shares stand in her name on the company’s stock books. Code, § 1265.
    2. Averment of levy on stock; involves averment of notice to oustodian of. — The giving of notice of his action by the officer executing the writ to the custodian of the book of transfer is by statute, Code, § 1265, made an essential part of the levy itself, and an averment of the fact of levy made by the bill involves the averment that such notice was given.
    3. Bill to compel transfer of stock; what are necessary averments in.- — Under the statute it is only necessary for a bill, brought to compel transfer of stock, to aver that the stock is registered in the name of the defendant in execution at the time of the levy. This averment puts him in the attitude of being the true owner, and if he is not the true owner it is for the defendant to traverse the averment.
    4. Same. — Where a bill is brought to compel a transfer of stock of an incorporated company, sold under execution and bought by complainant, it is not bad for failing to negative the registration of respondent’s claims to the stock on.the transfer books.'
    AppeaXj from Montgomery Chancery Court.
    Heard before Hon. W. L. Parks.
    The hill in this case alleges: That appellee, is executrix of the will of Tulane; that on the 12th of March, 1898, she and Bates, executors of the same estate, commenced suit by attachment against Buyck; that said attachment was levied by the sheriff upon the stock of appellant, a corporation, standing on the hooks in the name of Bxxvck; that appellee and Bates, as executors, recovered a judgment against Buyck; that execution was issued and levied upon certain described stock in appellant as the property of Bnvck, being the same stock upon which the attachment was levied; that said stock was advertised by the sheriff and sold March 13, 1899, and was purchased by appellee; that the sheriff executed a deed to her therefor, a copy of which she attaches; that appellee has applied to appellant to have,the stock' transferred to her upon the hooks of the company, hut appellant has refused because said stock,is..claimed by Josiali Morris & Co., composed of F. M. Billing'; thaithe said Morris & Co., F. Ml Billing, J. P. Kohn ana S. Boman “claim some interest in said stock, but oratrix avers that their right, whatever it may he, is subordinate to the right of oratrix thereto, and that oratrix has the right to have the same transferred upon the hooks of said corporation to her name as executrix;” that said Bates is enjoined by the chancery court from acting as executor.
    She makes the Wetumplux Bridge Co., Josiah Morris' & Co., Billing;, Kohn, Boman and Bxxyck parties defendant, and j>rays that the' stock be transferred to her, and that certificate therefor he issued to her as execxxtrix, axxd that dividends he paid her.
    Morris & Co., Billing, Kohn and Boman, together, and Wetumpka Bridge Co., separately, demurred. The groxxnds of demxxrrer were-: That the complainant lias a plain, complete and adequate remedy at law. That it-is not alleged that complainant purchased the stock without notice of the interest of these defendants therein. It does not appear that complainant has any right to have the stock transferred, but only to have the proper officer register the transfer made by the sheriff, and she alleges no facts to show that Buyck, to whose interest she succeeded, was entitled to demand a transfer from s.aid company. It does not appear that the sheriff gave any notice of said levy to the custodian of said boobs. The bill seeks to divest the interest of these defendants in said stock and sets forth no facts showing that the interest of defendants is not superior to the right acquired by complainant by said purchase, and complainant does not offer to do equity. For aught that appears in the bill the question of superiority as between complainant and defendants is a matter which defendants have a right to be settled in a court of law. It is mot alleged that the interest of these defendants, in said stock was not registered upon the books of the company prior to the levy.
    Watts, Troy & Caffey, for appellants,
    cited, to show the insufficiency of the allegations of the bill, the folloAving authorities: McKinley v. Irvine, 13 Ala. 693; Goldsby v. Goldsby, 67 Ala. 562; Reese v. McGurdy, 25 Bo. Rep. 919; Smith v. Gilmer, 93 Ala. 226; Birmingham v. Bank, 99 Ala. 379; Nabring v. Bank, 58 Ala. 208.
    Gunter & Gunter, contra.
    
    — There is no adequate remedy at law.- — 2 Thompson on Corp., 2425; 2 Cook on Stock, 3 ed., § 579.
   McCLELLAN, C. J.

— -The assignment of demurrer that complainant has a plain, complete and adequate remedy at laAV is not insisted upon by counsel for appellant, and Avill not be considered here.

It Avas not incumbent upon the complainant to negative notice on her part of respondent’s claims to the stock standing on the books of the bridge company in the name of Buyck. This is defensiAre matter. On tlm averments of the bill Buyck, for the purposes of the levy and sale, ivas tlie owner of the shares of stock. Iiis title passed to the complainant by the sale, and she as the. present owner thereof is entitled to have the shares stand in her name on the company’s stock books. — Code, S T265. This means only that she has a right to have the stock registered as belonging to her, and this in substance is the prayer of her bill.

The giving of notice of his action by the officer execut ing the writ to the custodian of the books of transfer is by statute made an essential part of the levy itself (Code, 1265), and the averment of the fact of levy made by the bill involves the averment that such notice was given.

Under the statute it Avas only necessary for the bilí to aver that the stock Avas registered in the name of Buyek at the time of the levy. This averment for the purposes of the case as uoav presented, puts him in the attitude of being the true OAvner in the estimation of the statute. — White v. Rankin, 90 Ala. 541; Winter v. Montgomery Gas Light Co., 89 Ala. 544. And if he Aims not the true owner, it is for the defendant to traverse this averment of the bill, and shoAV that another was the owner or had a prior lien and that complainant had notice thereof. This bill is not bad for failing to negative the registration of respondent’s claims to the stock on the transfer books.

The decree overruling the demurrer to the bill is affirmed.

Affirmed.  