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152

HARVARD LAW REVIEW.

of the corporation personalty, and hence not subject to the land tax. The court overruled the objection, not on the ground that the property of the corporation was entirely different from that of the shareholders, but because, "as between the heir and executor, this (the real estate of the company) is to be considered as per- sonal property, but the Legislature did not intend to alter the nature of it in any other respect."

Another class of cases illustrating the theory now under consid- eration arose from the transfer of stock on the books of the com- pany by fraud or mistake without the consent of the owner. When it is understood that the right of a shareholder is a legal right, it is obvious that such a transfer cannot effect his rights un- less he is estopped to assert them.^ If, however, the legal interest is in the corporation, and the right of a shareholder is only equita- ble, the transferee, in the case supposed, will acquire title, though perhaps he may not be allowed to retain it. The latter view was taken in all the cases which arose prior to the year 1800. One of the earliest of them was Hildyard v. The South Sea Company and Keate.2 The plaintiff's stock had been transferred to Keate, an innocent purchaser, under a forged power of attorney. The court decided that the plaintiff was entitled to relief, and that the loss must fall on Keate. Apparently the court was of opinion, how- ever, that until relief was given Keate was the actual stockholder, and not the plaintiff. Thus, it is assumed that the dividends which Keate had received were the dividends on the plaintiff's stock, and that they must be recovered at the suit of the plaintiff, not of the company. Further, the company is directed to " take this stock from the defendant Keate and restore it to the plaintiff." The case was afterwards overruled,* but in a way which served rather to emphasize the theory that the legal title to all the stock of a corporation is in the corporation itself.*

In Harrison v, Pryse^ the facts were substantially the same, except that the defendant was not a purchaser for value. The company was not made a party. The plaintiff recovered the full value of his stock on the theory that it had been converted. The transfer on the books of the company, though without the plain- tiff's authority, was assumed to have divested him of his stock.

1 For a careful expotition of the modem view see Lowell, Transfer of Stock. > 2 P. Wms. 76 (1732). * Ashby V. Blackwell, AmbL 503.

  • See also Monk v, Graham, 8 Mod. 9. * Barnard. Ch. 324 (1740).