Leiper's Appeal , 1885 Pa. LEXIS 336 ( 1885 )

Mr. Justice Tkunkey

delivered the. opinion of the court, March 16th, 1885.

That a married woman may sell or give her personal estate to her husband, or with his consent, to a stranger, has been .settled, and is uncontroverted. The appellants concede,that a wife may make a written transfer of the personal property, if her husband’s consent be orally given, and that the transfer of the stock to Green to hold as collateral seeurit3r, was valid. They further concede that Green’s rights passed to his assignees and that they would be entitled to the benefit of the security if indebtedness by Leiper to Green still existed. But they deny that Green’s transferees who claim to have taken the stock from him on the faith of his ownership, have any other title than was vested in Green, which title expired by the extinction of the indebtedness. They rest their case mainly on the point that the transfers signed by Mrs. Leiper, on their face, failed to clothe Green with apparent ownership of the stock, and therefore his pledgees were put upon inquiry respecting his title.

The Master was of opinion that the husband’s assent to the transfer of the stock in controversy was essential to its validity. Of the correctness of this there can be no doubt. Numerous statutes have been enacted authorizing married women to make executory contracts, releases, and sales and transfers, in particular cases. For instance, the Act of March 18th, 1875, empowers a married woman owning loans of this Commonwealth, or of the city of Philadelphia, or any of the loans or shares of the capital stock of any corporation created by or under the laws of this Commonwealth, to sell and transfer the same as if she was unmarried. From such statutory provisions there is no inference that she has authority, without her husband’s assent, to sell and transfer her shares of the stock of any corporation created by or under the laws of another state, or of the United States.

The powers of attorney signed by Mrs. Leiper, not being accompanied by written evidence of the assent of her husband, prima facie,, were insufficient to vest the apparent title to the stock in Green. His right depended on oral and written evidence. Without oral testimony of Leiper’s assent, the writing of his wife passed nothing. They did not confer upon Green by a written transfer, all the indicia of ownership of the stock — the written ‘assent of the husband was wanting. Just here this case differs from Wood’s Appeal, 92 Pa. St., 379; Burton’s Appeal, 93 Id., 214, and other cases controlled b3^ like principle, wherein the transferees not only found the possessors' of the stock from whom they purchased clothed with written evidence of ownership, but no circumstance to put them on inquiry. The fact that Mary B. Leiper alone signed the powers was enough to warn purchasers or pledgees to ascertain whether she made the transfers with her husband’s assent. Of whom would they inquire ? Not of Green, who was offering to pledge the stock, but of him whose assent was essential to the validity of Green’s title. Green, if fraudulently endeavoring to effect a sale or pledge, would likely say nothing to defeat it, but assert whatever would advance his purpose. The husband, if called upon, would not only answer that he gave consent, but also state that the stock was transferred to Green to hold as collateral security for a debt. In the natural order of inquiry they would ascertain the actual terms of the transfer, and take the stock subject to those terms.

If Green’s pledgees believed that Mary B. Leiper was unmarried, she is not estopped. There is no pretence that she fraudulently represented herself single; but if she did, the doctrine of estoppel would not apply: Keen v. Coleman, 39 Pa. St., 299. They took the'risk of her status. Persons who are legally incapable of contracting or disposing of their property, in the attempt to do so, do not become bound as if capable, because of omission, at the time of the transaction, to assert their incapacity.

Nor is this the ease of a pledge by the husband of stocks given to him by his wife. The pledge to Green was good, for in that transaction the husband was an actor. But Leiper was no party to the pledge by Green. Had he made the pledge to the respondents, or been an actor in the making of it, then the position that the certificates and powers of attorney in blank, delivered to him by his wife, vested him with the indicia of ownership so that he could make a valid pledge of the stocks to innocent parties, might be unassailable. In fact, Leiper and his wife pledged the stock to Green as securitjn Aside from the rights of the pledgee, she continued absolute owner. In no instance did Leiper claim to own the stock. He did not clothe Green with the full indicia of title, and the appellees do not stand as innocent purchasers or pledgees from the apparent owner.

Upon the facts found by the Master it is clear that MaryB. Leiper is the owner of the stock, that the purpose of the pledge to Green was accomplished, and his representatives have no right to hold it, and that the appellees have no superior equity entitling them to retain possession for security of their loans to Green.

Decree reversed, and it is now considered and decreed, that the defendants, Franklin Dundore and Lafayette L. Webster, tradiug as F. Dundore & Co., within thirty days deliver to said Mary B. Leiper, certificate No. 759, dated June 28th, 1880, for twenty shares of the Corn Exchange National Bank, and certificate No. 1688, dated June 26th, 1880, for five shares of the Girard National Bank, and duly transfer to said Mary B. Leiper, and deliver to her the certificate or certificates in the name of F. Dundore & Co., for ten shares of the capital stock of the National Security Bank, issued to them in lieu of certificate No. 361, dated March 27th, 1880, for ten shares of the National Security Bank. •

. That the defendants, Edgar C. Gramm and William Sinnett, trading as Gramm & Sinnett, within thirty days, deliver to said Mary B. Leiper, certificate No. 2230, dated June 28th, 1880, for ten shares of the Philadelphia. National Bank, in name of Mary B. Leiper.

That the defendants hereinbefore named in this decree pay the costs, including costs of'appeal.

That the bill be dismissed as to the other defendants. - That the record be remitted for the enforcement of this decree.