Duncan McDougald, Appellant, vs. Arabella Hepburn, Appellee, 5 Fla. 568

BALTZELL, C. J., delivered the opinion of the Court: This is a suit in Chancery, instituted by Mrs. Arabella Hepburn, to obtain dower, in certain land and lots lyingin and near Apalachicola, which she claims through' her deceased husband, the late Burton Hepburn. The counsel of McDougald having died, a rule was taken upon him to employ new counsel, which he failing to do, complainant was allowed to proceed exfa/rte. It does not appear how the case was submitted to the Court, no order for the hearing having been made.

In the final decree rendered, it would seem to have been tried upon “the bill, answer of the defendants, and evidence.” In this Court, it was agreed that a replication had been filed in the Court below, so that we are to treat the case as if tried upon bill, answer, replication and evidence. If the object of the plaintiff was to establish his case by proof, not satisfied with the admissions in the answer, he has most signally failed, as there is not, independent of the answer, a word of proof in the record, no deposition of a witness, and no writing of any character.

Reliance seems to have been placed, in argument, upon the answer of the other defendants, but we think it very clear that this is not evidence. The other defendants were but nominal parties, and had no identity of interest with plaintiff. “ It is a general and almost universal rule that the answer of one defendant cannot be read as evidence against another.” 1 Green., § 178; 2 Ban’l. Ch. Pr., 981. If the answer of McBougald is to be excluded as evidence^ as has been contended in argument here, there is not the slightest foundation for the decree.

We, however, proceed to ascertain the extent to which itmay be used, desirous of disposing of the case as far as possible on the merits. “ If a replication be filed, the answer is nqt evidence in the defendant’s favor, but the plaintiff may use any portion of it, without admitting the remainder to be read, except so far as it is explanatory of the portion used.” Adams’ Equity, 20, 21.' A difficulty arises in the present case from the want of the order submitting the case to the Court.

If part only of the answer was read, it should have been so stated, and then the question would arise of reading the other passages, or of throwing the burthen of proving independent facts upon defendant. As the case was tried ex parte, the presumption is against complainant, that the entire answer was read. Pegarding it in this point of view, we proceed to examine if plaintiff has shown an equity, for in this event we should incline to remand the case, with permission to amend the pleadings, and for further hearing.

The answer, whilst admitting that Hepburn and others took deeds in fee, alleges “ that prior to their execution, a Company was formed by these parties, 'and others, to be called the Franklin Land and Town Lot Company, and that they appointed Hepburn, Hodge, and others, agents to purchaselots in Apalachicola; that these agents didmakeapurchase of the lands and lots, and were directed to take deeds in their names, as trustees of said association, and they file copy of the articles of association ; that by mistake, the deeds were made to them in fee simple, and not as trustees ; that they always regarded it as a trust; that the whole property was divided into 64 fractional parts, and that said trustees gave certificates, or scrip, to each shareholder for his share, binding themselves to make titles to each share holder, so soon as the liabilities of tbe Company, then existing or to accrue in the erection of buildings, &c., should be discharged; that Hejfburn took a certificate, signed by himself and co-trustees, for one full eighth which was assigned and transferred by him, in his life time, to Bonner & Watson, and by them, to others, who transferred to defendant.” The complainant has confirmed this view of the answer, by taking her decree not for an interest to the extent which she would he entitled to by the deeds, but regulated by the extent of the shares which her husband held.

Is this interest or ownership of shares in a Company, such as is here ■described, subject to dower of tbe wife ? In the case of Blake vs. Jones, the Supreme Court of South Carolina treated “ a certificate of this kind as nothing more than an equitable agreement, a cbose in action,” although the land vested in the scripholder by tbe original grant. 1 Bailey, 147. In Gilman vs.

Brown, jr., which involved tbe validityof tbe title to shares in the lands of the New England Mississippi Land Company, plaintiff was declared entitled to shares of the common stock oftfie Company, and not to the interest of one of the original grantees. 1 Mason, 210. It is there stated that one amongst many reasons for the forming a Company, was to give a negotiable quality to the ¡i$ock or property, which, without impairing the great ob ■ jects of the association, might facilitate the transfer of shares in the property, and give it a marketable value.

Now it is readily perceived that if certificates of shares were liable to a claim for dower in the hands of every assignee to whom they might be transferred, the very objects designed in forming such an association would be defeated. These authorities, with those cited in the very conclusive argument of defendant’s counsel, and which were not controverted on the other side, leave no room to doubt that the complainant is not entitled to the relief she prays.

It is therefore decreed and ordered that the decree of the Circuit Court be reversed and set aside, with costs, and the cause remanded to that Court, with direction’ to dismiss the bill, with costs. A petition for a re-hearing was presented by the appellee in this cause, which was refused by the Court,