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Opinion of the Court.

ter, and the 5 plaintiffs who are his grandchildren, his only heirs at law; that he was entitled at the time of his death to a considerable personal estate, and possessed of 24 shares in the stock of the Galveston City Company, including the 3 shares so alleged to have been fraudulently transferred by Lipscomb into his own name; that 21 of said shares were, at the time of said White's death, standing in his name on the books of the company, and the certificates of ownership thereof so issued to him, to wit, those numbered 108, 116, 118, 119, 120, 121, 122 and 124, out of Book A, and those numbered 10, 12, 27, 28, 34, 42, 43, 44, 45, 46, 47, 48 and 49, out of Book C, were at that time in the possession or power of said Lipscomb; that the personal estate of which White died possessed was more than sufficient, exclusive of the 24 shares of stock, to pay his debts, and they had long since been paid; and that there was no administration of his estate in Texas, nor any necessity therefor.

The bill further showed that Mary S. White died in 1853, without having disposed of the right or interest she was entitled to as the widow of David White, in the said 24 shares of stock, leaving her daughter, the said Asenath, and her said 5 grandchildren her only heirs at law her surviving; and that they as such, and as the only heirs at law of David White, thereupon became entitled to said shares of stock.

The bill further showed that Lipscomb, after the death of said White, and with the connivance of the company, and by an entry on its books, but without authority, and, in fraud of the rights of the plaintiffs, transferred the said 24 shares of stock to some persons unknown, the company at the time taking up and cancelling the said certificates of ownership thereof, and delivering to the transferees new certificates under its seal in their names, representing the shares to be $1000 each ; that the company subsequently procured the said 24 shares, and the certificates corresponding thereto, to be surrendered to it by those to whom Lipscomb had so transferred them, or by their assigns, at the same time cancelling said shares upon its books, thus retiring them, and was now claiming the benefit thereof; that the transfer of said shares

Opinion of the Court.

by Lipscomb, after the death of White, was without warrant and void, and the company, in contemplation of law, was a party to his said illegal acts, and liable to the plaintiffs for all the consequences thereof; and that the company held the stock in trust for the plaintiffs.

The bill further charged that the truth of the said matters would appear by the books, certificates, writings, papers, and memoranda relating to said shares of stock, in the possession or power of the company, if it would discover and produce the same, which it refused to do, though frequently applied to for that purpose.

The bill further charged that the company, and its agents and servants, had always studiously concealed from the plaintiffs the said matters relating to the stock of the said White, and particularly the said illegal acts of Lipscomb and the company's participation therein, by withholding from the plaintiffs all information in reference to said stock, and refusing them access to its books and papers; that the plaintiffs were in total ignorance of said illegal acts of Lipscomb, and their rights in the premises, until about 12 or 14 months next before the filing of the bill; that the plaintiffs, except the said Asenath, were, at the time of the death of said White, minors of tender age, and resided in Alabama and Florida, at a distance of 800 miles and upwards from Galveston, where Lipscomb resided, and where the said illegal acts were committed; that the plaintiffs were not apprised even of the fact that said White had owned shares in the capital stock of the company, until some years after his death; that after they were so apprised, to wit, in 1869, and again on March 19, 1879, at Galveston, by one Thomas J. Molton, their agent in that behalf, and at divers other times and by other persons, they made application to the company, its agents and servants, for information as to what disposition, if any, had been made of the shares owned by said White, and also for permission to examine its books and papers, to ascertain their rights; but the company, on every such application, declined to disclose to the plaintiffs any facts relating to said stock, and refused them access to its books and papers.

Opinion of the Court.

The bill further showed that Lipscomb died in December, 1856, notoriously insolvent, and without having accounted to the plaintiffs or any of them for the 24 shares of stock or any interest therein; that the plaintiffs bad applied to the company to cancel the alleged transfers of said 24 shares and the entries of such transfers in its books, and to revive said shares in the names of the plaintiffs as the heirs at law of said White and his widow, and to enter the names of the plaintiffs in its books as the owners of said stock and to issue and deliver to them certificates therefor, in the proper form, but that it refused to comply with such requests.

The bill called for an answer, but not upon oath, the benefit whereof was expressly waived. It prayed that the alleged transfer of the 3 shares of stock by Lipscomb into his own name from that of White, and the entry thereof in the books of the company, and the delivery by it to Lipscomb of a certificate of ownership of the 3 shares, might be declared to be a fraud upon White; that it might be declared that the alleged transfers by Lipscomb of the 24 shares, after the death of White, and the subsequent retirement or cancellation of said shares by the company, were without lawful warrant and void; that the said 24 shares might be declared to be the property of the estate of White, and the plaintiffs might be declared entitled to have the same to their own use, and to share ratably with the other stockholders of the company in all accumulations of property by the company since the date of said illegal transfers; that the company might be decreed to cancel said transfers and the entries thereof in its books, and to revive the said 24 shares, to enter the names of the plaintiffs in its books as the owners of the stock, and to issue and deliver to the plaintiffs a certificate of ownership for each of said 24 shares at the face value of $1000 each ; that, if the revival of said stock and the transfer thereof on the books of the company into the names of the plaintiffs were impracticable, then the company might be decreed to pay to the plaintiffs the market value thereof; and for general relief.

The answer of the defendant sets forth, by way of demurrer for want of equity, that the cause of action of the plaintiffs,

Opinion of the Court.

and of those under whom they claim, accrued more than 35 years before the filing of the bill; that no reasonable or sufficient cause or excuse is alleged why the suit was not earlier brought, or why all the facts therein pretended to be known were not earlier discovered; that it was not shown in the bill when or how any discovery of facts alleged not to have been before known, or to have been concealed, was made by the plaintiffs, nor any diligence to ascertain the same, nor any excuse for the want of such diligence, nor any statement as to the course of proceedings or any facts connected with the administration of the estates of David White or his widow in Alabama, or as to the knowledge or acts of the legal representatives thereof in regard to the alleged rights and claims which are the subject of this suit, nor to remove the presumptions that all matters relating to the said stock, and on which the rights thereto were dependent, were fully known to said representatives; that the plaintiffs' cause of action is barred by the law of limitations of Texas and the lapse of more than 35 years since the same accrued before this suit was brought; that the suit had been delayed such great lapse of time, and parties holding the certificates of stock alleged to have been issued in renewal of those which belonged to White had many years ago obtained full value therefor in the property of the company, and the rights of third and innocent parties, as the only holders of the present alleged stock in the company, had intervened and been permitted to grow up and become of great value; and that, therefore, the plaintiffs' cause of action was barred by such lapse of time and laches, was stale and inequitable, and ought not to be heard in a court of equity.

The answer sets forth various denials of material allegations in the bill, and various alleged defences, thereto. It further sets forth that no person survives who was connected with the business or administration of the company, or who had any connection with the stock, or could be reasonably presumed to have any knowledge respecting the same.

The answer further says that the defendant pleads that suit on the matters alleged in the bill had been forborne until all persons connected with the transactions to which it related,

Opinion of the Court.

knowing particular facts and details in regard to said stock, and the receipt and appropriation of proceeds therefor, were dead; and it pleads the laches, neglect and delay of the plaintiffs in bar of the suit, and alleges that the same is stale and inequitable, and ought not to be further heard or considered.

The answer further sets forth that by the statute of limitation of suits in Texas, passed in 1841 and ever since in force, all actions for personal property must be commenced and sued within two years after the cause of action accrued, all actions of debt grounded upon any contract in writing must be commenced and sued within four years next after the cause of such action or suit, and the longest period of limitation for suits or actions of any kind was ten years; that the plaintiffs' cause of action, if any they ever had, accrued more than ten years and more than thirty-five years before the filing of the bill; that said statute had not failed to be operative against the plaintiffs on account of any exception therefrom, contained therein, within the principles of equity and good conscience restraining the same. It denies all concealment, fraud or wrong charged in the bill on the part of the defendant, to prevent the running of said statute, and denies that any diligence had been shown or existed on the part of the plaintiffs, or any excuse for the lack thereof, to prevent the running of said statute; and it pleads the same as a bar to the plaintiffs' suit. It further answers that the great lapse of time, rendering impossible correct knowledge of facts at the present day, resulting from the death of all parties to the transactions, the laches of the plaintiffs, and the bona fide accrual of the large and valuable rights of the other stockholders in the company, render the bill a stale, inequitable, and unconscientious demand, which ought not to be heard in a court of equity; and the defendant pleads the same in bar and estoppel.

A replication was filed to the answer, proofs were taken, and the cause was heard. The Circuit Court, in November, 1886, dismissed the bill, with costs, and allowed an appeal to this court, by the plaintiffs. No written opinion was delivered, but it is stated in the brief of the appellants that the Circuit Court held that the claim could not be prosecuted, by reason

VOL. CXLVI-8

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