I. To show that this secret transfer was void, the respondent relies upon the language of the statute. (Wood's Dig. Art. 459, sec. 12 of Act of 1850, and Art. 488, sec. 9 of 1853.) The letter of the statute is clear and positive; its force cannot be evaded by any possible construction. (Sedgwick on Statutes and Constitutional Law, 310, 311, 245. Preistman v. United States, 4 Dallas, 30, note 1; Newell v. The People, 2 Selden, 97; McClusher v. Cromwell, 1 Kernan, 193.)
II. The analogy of our legislation furnishes a conclusive argument against the appellant. (See Statute in reference to Fraudulent Conveyances, sec. 17, Wood's Dig. 107, Art. 405.) The language employed is the same in the section referred to, and the same effect must be given to it.
The general corporation law, and the statute last referred to, were enacted by the same Legislature; one, April 19th, 1850, and the other, April 22d, 1850.
III. The question is settled in favor of respondent by expressadjudication in this State. (Weston v. The B. & A. W. & M. Co. 5 Cal. 186; Id. 6 Cal. 425; Strout v. The Natoma W. & M. Co. 9 Id. 78; Ede v. Johnson , 15 Id. 53, 58.)
IV. The cases cited by appellant's counsel in other States, by reason of essential differences in our own legislation, and in our statute, have no bearing upon the question involved in this case.
JUDGES: Norton, J. delivered the opinion of the Court. Field, C. J. and Cope, J. concurring.
OPINION
NORTON, Judge
The facts in this case are the same as those in the case of Weston v. The Bear River and Auburn Water and Mining Co. (5 Cal. 186) in which it was decided that the assignment by merely a delivery of the certificate of stock, without a transfer on the books of the corporation, was not sufficient to defeat the rights of an attaching creditor. On the same case coming before the Court again, (6 Cal. 425) when the fact appeared that the purchaser at the sale of the stock under the lien obtained by the attachment, knew at the time of his purchase that the stock had been transferred by an assignment of the certificates, the Court held that this fact distinguished the case from its condition when first before them, and upon this distinction decided that the transfer was good against the purchaser under the attachment lien, with knowledge of the transfer. It may not be quite clear upon what principle that distinction rests. If, by the operation of the statute, the transfer was absolutely void against all persons except the parties, and for that reason was void against the rights of an attaching creditor--which is the decision in the case in the 5th Cal.--there seems to be some difficulty in saying that this right of the attaching creditor can be defeated by giving him notice after his lien has attached, or giving bidders at the sale notice of a prior transfer; but this is the effect of the decision in the 6th Cal. Nevertheless, the Court did not intend by the latter decision to overrule or to qualify the former decision; for they expressly say that public policy demands that the former decision should be maintained. In the subsequent case of Strout v. The Natoma Water and Mining Co. (9 Cal. 78) the Court assume the law to be settled according to the first decision in the case of Weston v. The Bear River and Auburn Water and Mining Co., and no conflicting decision has since been made.
It would be an unprofitable labor to investigate how far the decisions of other States conflict with ours, or whether the apparent conflict arises from the circumstance that those decisions, many of them, are made upon the effect of by-laws of a corporation, restrictive of the general laws of the State relating to the transfer of property--while our decision rests upon a general statute. The decision of our own Court must control, unless we are required to overrule it. We think the decision has stood too long as a guide for transactions of this nature to be now disturbed.
Judgment affirmed.