Dennis v. Perry

We do not find that the bill alleges that the First National Bank either conspired or colluded with the other defendants in the fraud which they are charged with having practised on Joseph T. Perry; but it only alleges that the bank knew that Joseph T. Perry was of unsound mind, and for that reason incapable of making a valid transfer of his property, and that knowing this, it wrongfully and improperly assented to his transferring certain of his shares in the stock of the bank. It is possible that the allegation might be sufficient to affect the bank with liability if it were charged that in consequence of its asent to the transfer the shares transferred had been lost to the said Joseph T. Perry, or to his estate. But the bill contains no such charge. On the contrary, it shows that they are still in the hands of one of the other defendants, who are charged with having fraudulently procured the transfer to be made. The bill simply prays for a reconveyance of them. Such a reconveyance will have to be made by the present holder. The bank will have nothing to do with it, except to allow it to be made or recorded on its transfer books. It will be the duty of the bank to allow this whenever the holder, in obedience to the decree of the court, calls upon it to do so. The bill contains no allegation showing that it will refuse to do it. In the absence of such an allegation we cannot presume that it will refuse. We see no reason, therefore, why the bank should be made a party to the bill, and required to answer and defend itself. Story's Equity Pleading, §§ 231-233 a.

It is urged that the bank is a proper party because an injunction is asked to prevent any transfer pending the litigation. It is enough, in our opinion, to enjoin the holder of the stock. The bank cannot transfer it without him. If the complainants are apprehensive that the holder will not regard the injunction, they can notify the bank of it, by way of precaution.

Demurrer sustained.