Williams v. Lowe. paid him the money on this ground only, and that Williams never set up or made any claim to the shares until he wrote his letter of September 29, 1868. This testimony of Lowe stands uncontradicted. Hence, if there was no proof tending, in some degree, to show some agreement creating the trust, upon what principle can the payment of the sums of money be corroborative evidence of such agreement? And if Lowe was under no legal obligation to pay this money, and his motives and purpose in doing so are not referable to any legal obligation, by what rule of law can such payment of money establish a contract creating a trust? It must be borne in mind that in respect to this branch of the case, the allegation is not that of a resulting trust by operation of law only, but one by verbal agreement between the plaintiff and defendant, E. Lowe, by which the latter agreed to hold the property in trust; and the allegata et probata must agree. Therefore, in order to establish the trust by parol proof of such agreement, the terms of the agree ment must be clearly and satisfactorily shown. And as such parol evidence is in opposition to a written title, it must, if admissible, be received and examined with great caution. It has been said that courts have always been impressed with the danger of this kind of proof, as tending to insecurity of title and to perjury, and because there is great liability to mistake; that even the slightest mistake, or failure of recollection, may totally alter the effect of what was said. This danger of mistake is greatly increased when a witness undertakes to speak from mere memory of conversations or declarations after a long lapse of time. Lane v. Deighton, Amb., 409. Cascoigne v. Thering, 1 Vern., 366. Willis v. Willis, 2 Atk., 71. Lench v. Lench, 10 Vesey, 517. Loyd v. Carter, 17 Penn. State, 216. Strimpfler v. Roberts, 18 Id., 298. Sunderland v. Sunderland, 19 Iowa, 329. Boyd v. M'Lean, 1.Johns. Ch., 582. Parmelee v. Sloan, 37 Ind., Williams v. Lowe. 482. Miller v. Stokeley, 5 Ohio State, 196. Davis v. Wetherell, 11 Allen, 19. Enos v. Hunter, 4 Gilm., 218. 2 Wash. on Real Prop., 173. I have thus far only considered the question first propounded, in respect to the alleged agreement creating a trust, and upon both principle and authority, I must conclude that the evidence is not sufficiently clear, satisfactory, and conclusive, to maintain the allegation of contract creating a trust as alleged in the petition. As neither the pleadings nor the evidence bring this case within the class of cases which are based on some consideration paid, it is unnecessary to discuss the question in reference to such class of cases. Now, as to the second count in the petition, it is insisted that the plaintiff, by his allegations in the first count, is estopped from pleading want of jurisdiction in the court over the defendants or the subject matter in the suit in which the decree was rendered for the sale of the property, because this count appears to be inconsistent with the first one; and again, that this second count does not present proper subject matter for equity jurisdiction. In regard to the first proposition, I may only observe that it is laid down as a fundamental principle in equity jurisprudence, "that if the plaintiff doubts his title to the relief he wishes to pray, the bill should be framed with a double aspect, so that, if the court should decide against him in one view of the case, it may afford him assistance in another." Story Eq. Jur., S. 42. And, again, that "where the title to the relief will be precisely the same in each case, the plaintiff may aver facts of a different nature, which will equally support his application." Ibid. S., 254. Mitf. Eq., 39. Cooper's Eq. Pl., 14. Cadwallader v. Granville Alexandrian Society, 11 Ohio, 298. As to the second proposition, it will be observed that the plaintiff in this count of his petition not only alleges want of jurisdiction in the court over the defendants and Williams v. Lowe. the subject matter, but also that the defendants, under color and by virtue of the proceedings in the former suit, procured the shares of stock to be transferred on the books of the ferry company to the defendant, W. W. Lowe; that the defendants hold the shares so transferred, and have received the dividends on them in trust for the plaintiff. And the evidence shows that in accordance with this transfer, certificates for this stock were issued by the company to said W. W. Lowe, vesting in him the only title to the shares which the company could regard. If the proceedings in the former suit are void, then, I think the defendants hold the shares so transferred to them in trust, and the dividends received by them as a trust fund for the plaintiff, for the reason that, even if they cannot be taken as accountants, and be required to account in equity to the plaintiff, yet the account for the dividends has an equitable trust attached to it by reason of the title to the shares having been transferred to the defendant, W. W. Lowe, thereby vesting the title in him, by virtue of such transfer and the issuance of certificates therefor to him. In Bac., Abr., B., in speaking of the powers of a court of equity, it is said that "they come to extend their notions; and the person that took the mesne profits by wrong, was taken as a trustee for, and accountant to him that had the right," and Story, in his Equity Jurisprudence, S. 510, speaks of cases frequently arising out of tortious or adverse claims and titles, and in Section 454 says, that "whenever the account stands upon equitable claims, or has an equitable trust attached to it, there is no doubt that the jurisdiction is absolutely universal, and without exception, since the party is remediless at law." And as the constitution invests the courts with distinct equity jurisdiction, and as there is no legislative enactment restricting purely equitable pleadings in such Williams v. Lowe. cases, I think, it is a safe rule to follow the settled principles of equity jurisprudence. Bank of America v. Pollock, 2 Edwd. Ch., 215. But the main question raised by the second count in the petition is, whether the decree and proceedings in the former suit are void for want of jurisdiction in the court. To regard them void, there must have been a total want of jurisdiction, for if the court had jurisdiction of either the persons of the defendants or the subject matter of the suit, then, no advantage can be taken of mere irregularities in a collateral proceeding. The facts are, that on the thirteenth day of March, 1862, The Council Bluffs & Nebraska Ferry Company, commenced suit against Henn & Williams, by bill in chancery, alleging that the defendants were the owners of four shares of stock of the company, upon which an assessment had been levied, and that they were indebted to the company on account of such assessment in the sum of four hundred dollars and interest thereon; that neither of the defendants had real or personal estate subject to levy and execution sufficient to satisfy the debt, and insisted that the company had a lien upon said shares to the amount of the claim demanded, and was entitled to have the shares sold, and asked that an account be taken, the shares be sold for the payment of the same, and that the defendants be ordered to deliver up to be canceled their certificates of stock, to the end that new certificates may be issued to the purchaser under such sale. The affidavit to this petition states that the defendants were both non-residents of Nebraska, and could not be served with process. Upon this showing service was made merely by publication in a newspaper; and upon this kind of service a default was taken, the bill taken pro confesso, and the decree was rendered. The jurisdiction of the persons of the defendants is negatived by the affidavit; and therefore, the case may perhaps be Williams v. Lowe. The considered in the nature of a proceeding in rem. rem, or subject matter of the suit, consisted of shares of stock in the Council Bluffs & Nebraska Ferry Company. What is the nature and character of such property? It seems to be an established rule of law that a corporation is "a body politic, and a distinct person in law from all its members, so created for the express purpose of a distinct and independent existence and capacity, in legal contemplation, so that the corporation may contract and be contracted with, sue and be sued, by any one of its members." From this proposition it must follow as a corollary that the stock owned and held by an individual must be regarded as a distinct property from that of the corporation. Mass. Iron Co. v. Hooper, 7 Cush., 187. State v. Franklin Bank, 10 Ohio, 98. Hence, I think, the rule is well founded in reason and sound in principle, that stock of a corporation, being thus the separate property of the individual, is, in a legal sense, personal property; it may be sold by the owner of it; it may be conveyed by will, and it may descend from an intestate to the adm'r. 3 Danes Abr., 108. Hutchins v. State Bank, 12 Met., 421. Sargent v. Franklin Ins. Co., 8 Pick., 90. State v. Franklin Bank, 10 Ohio, 97. to The stockholder, however, incurs a personal liability pay the assessments required by the directors, and the relation of stockholder and company implies a promise to pay such assessments as are legally assessed, and the common law furnishes a remedy for a violation of this engagement by action in assumpsit, or indebitatus assumpsit. But it seems clear that the power to forfeit and sell stock for default of payment of assessments, does not exist at common law, and therefore the remedy by forfeiture and sale of stock, is exclusively a statutory one, and is cumulative, "unless the charter or genera. laws of the state provide that no other remedy shal' be |