
    Patrick Rock vs. John H. Nichols.
    The payee of a check, received in payment for shares which were not owned by him at the time when he undertook to sell them, cannot maintain an action thereon against the drawer.
    Contract upon a check given by the defendant, under circumstances stated in the opinion. In the superior court, upon facts agreed, judgment was rendered for the defendant, and the plaintiff appealed to this court.
    
      H. Carter, for the plaintiff.
    
      G. Wheatland, for the defendant.
   Metcalf, J.

Shares in the stock of the Eastern Railroad Company were conveyed to the plaintiff, in due form, by John Rock, but the conveyance thereof was not recorded in the books of that corporation. After that conveyance was made, the same shares were sold as the property of John Rock, on an execution obtained against him by one of his creditors ; and it is not denied by the plaintiff that the sale on execution was made conformably to statute requisitions, and gave to the purchaser a valid title to the shares, provided they could be lawfully taken by a creditor of John Rock. That they could lawfully be so taken admits of no doubt. The Rev. Sts. c. 39, § 52, and Gen. Sts. c. 63, § 11, provide that shares in railroad stock may be transferred by any conveyance in writing, recorded in certain books, but declare that “ no conveyance of any such shares shall be valid, against any other persons than the grantors or their representatives, unless so recorded.” As against John Rock’s creditors, therefore, his conveyance to the plaintiff was not valid, but the shares were left open to attachment and sale for his debts; and the plaintiff, when he undertook to transfer the shares to the defendant, had no legal title to them. The defendant’s check, on which this action is brought, was given in payment for a conveyance which transferred nothing to him. The consideration for the promise implied in the check has failed, and the defend ant is not liable on it. See Fisher v. Essex Bank, 5 Gray, 373.

Judgment for the defendant.  