McGrorey v. Heggerty

OLNEY, J.

This is an action brought by one Bernard Campbell to recover certain stock certificates in the possession of the defendant. Judgment went for the defendant and the plaintiff appealed. Pending the appeal the plaintiff died and his executor was substituted.

The possession of the certificates is admitted by the defendant, who, however, while sued in his individual capacity, claims no personal interest of any sort in the property. His claim is that the stock is part of the estate of Patrick Campbell, deceased, of whose will he is the executor, and the sole issue in the case is as to whether the plaintiff or Patrick Campbell, when alive, was the owner of the property. On this issue the trial court found against the plaintiff.

It appears that the certificates had been delivered by the plaintiff to the defendant while Patrick Campbell was alive and under a receipt which the plaintiff himself took which specified that the defendant held the certificates for Patrick. The presumption arising from this receipt is confirmed by letters from the defendant to the plaintiff written in Patrick’s lifetime in which the stock is spoken of as belonging to Patrick. The defendant also testified that he always understood the stock to be Patrick’s and he held it for him, and that the plaintiff had never made any claim to it until the present action was commenced after Patrick’s death.

To overcome this evidence all that appears is the' testimony of the plaintiff himself and a certain writing. The character of the plaintiff’s testimony and the weight to which it is entitled may be judged from the following excerpt, which is but typical:

“Q. When you had this stock why didn’t you have it transferred in your name?

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“A. Because afterward you transferred it.

“Q. I mean .before I ever got it at all?

“A. I never wanted to have anything to do, and I was opposed to ever forming the New Bluepoint Mining Company and it came out I was always opposed to it for I considered it was nothing more than a swindle and I went to Ireland to put monuments on the old folks’ graves there, and that was in 1900, and I came back to New York and I went to Smartsville within 30 days from the time I heard of it in Ireland; I left Smartsville on the 4th day of July, 1900, and I had no breakfast there and I had to go into a grocery store to get some crackers and milk until we came to Wheat-land and the same man that drive the stage is living there to-day. ’ ’