Lowenberg v. Greenebaum

McFarland, J. Judgment went in the court below for plaintiff; and defendants appeal from the judgment and from an order denying a new trial.

In January, 1888, Simon Kullman et al. recovered a money judgment for several thousand dollars against the defendant in the present action, Jacob Greenebaum; and on September 23, 1889, an ordinary writ of execution was issued on said judgment. The sheriff undertook, under said writ, to levy upon and sell as personal property the “seat” of said Greenebaum in an association known as the San Francisco Stock and Exchange Board. He endeavored to accomplish this in the following manner: He delivered to the president and secretary of said association a copy of the said execution “ together with a notice that all moneys, credits and effects of the defendant, Jacob Greenebaum, in the possession or under the control of the said San Francisco Stock and Exchange Board, together with the seat, interests and shares of the defendant, Jacob Greenebaum, in and to the San Francisco Stock and Exchange Board, were levied upon by virtue of said writ.” He then advertised the said seat, interest, etc., for sale for a period of six days; and on October 16, 1889, he sold the same to William Lowenberg, the plaintiff herein—he being the highest bidder. On the same day the sheriff gave to plaintiff a certificate of sale which, after reciting the above facts, certifies that the sheriff had sold to plaintiff “all the right, title and interest of Jacob Greenebaum, one of the defendants, in and to the San Francisco Stock and Exchange Board, and the seat, interest and shares of the said Jacob Greeuebaum in the San Francisco Stock aud Exchange Board.”

On said October 16th the plaintiff herein served a notice [164]directed to said stock board upon its president, which, after reciting said sale, demanded “to be admitted to the enjoyment and participation of all the rights, privileges and interests heretofore enjoyed by the said Jacob Greenebaum in your board and in the property thereof,” and that an accounting be had, etc. The board paid no attention to the demand, and said Greenebaum has ever since continued to occupy his seat, with all its rights and privileges, in said board. Afterwards, on March 12, 1890, plaintiff brought this present action against said Greenebaum, making the said stock board and also a corporation called the Company of Associated Stock Brokers parties defendant. The purpose of the action is to have plaintiff’s title to said seat and rights appurtenant thereto quieted, a receiver appointed, an injunction issued, etc. Plaintiff rests his title wholly upon said asserted levy and sale by said sheriff under said writ of execution as aforesaid; but we do not think that by said sheriff’s sale the said seat of said Greenebaum in said stock board, or any rights dependent thereon, were conveyed to plaintiff.