Eylar v. Hall

MIDDLETON, PJ.

The petition alleges that the said defendant Wood purchased said stock with notice of the contract aforesaid, but the evidence wholly fails to sustain that averment of the petition. On the contrary, the undisputed evidence in the case establishes that the defendant Wood purchased said stopk without either notice or knowledge of the contract with the plaintiff.

This court is bound "to find from these facts that the defendant Wood was a bona fide purchaser of the stock in question, for a full and valuable consideration, without notice. Under this state of the evience it is impossible for this court to grant the plaintiff any relief. His right to this stock was a latent right, not known to the defendant Wood, and must yield to the superior rights of Wood who now holds, as shown by the evidence, the legal title to this stock.

A demurrer was filed to the petition in the lower court which was overruled by that court. It was insisted at the hearing, in this court that said demurrer should now be sustained. We conclude, however, that by reason of the allegation in the petition that the purchase was made by "Wood with full knowledge of the fights of the plaintiff the petition is good as against a demurrer.

The finding of this court is that under Urn established facts in this case the plaintiff may not invoke its equitable jurisdiction and that his petition must therefore be dismissed. This conclusion makes it unnecessary to consider any other questions raised in the ca_se.

Mauek, J, concurs. Blosser, J, not sitting.