App. Div.] First Department, February, 1906. Mrs. Clopton. If you find those facts to be as I have last described. them, the plaintiff is entitled to a verdict." To this defendants excepted, and requested the court to charge that the rights of the defendants in this case did not depend upon the actual title or authority of the party with whom they dealt directly, but were derived from the act of the real owner, which precluded her from disputing as against them the existence of the title or power which through negligence or mistaken confidence she caused or allowed to appear to be invested in the party with whom they dealt. This request the court refused and the defendants excepted. There was evidence introduced by the defendants which it is claimed was sufficient to show that Weyant had an interest in the stock, but the evidence was certainly not conclusive and the jury having passed upon that question of fact, we must assume that Weyant had no title to the stock. The substantial question is whether, on the evidence presented, the jury would have been justified in finding that the plaintiff's testatrix had conferred upon Weyant an apparent title to the stock which would have estopped her or her representatives from disputing his title. This position of the defendants is based upon a principle established by a line of authorities of which McNeil v. Tenth National Bank (46 N. Y. 325) is a leading case. This principle is thus stated: "It must be conceded, that as a general rule, applicable to property other than negotiable securities, the vendor or pledgor can convey no greater right or title than he has. But this is a truism, predicable of a simple transfer from one party to another where no other element intervenes. It does not interfere with the well established principle, that where the true owner holds out another, or allows him to appear, as the owner of, or as having full power of disposition over the property, and innocent third parties are thus led into dealing with such apparent owner, they will be protected. Their rights in such cases do not depend upon the actual title or authority of the party with whom they deal directly, but are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or power which, through negligence or mistaken confidence he caused or allowed to appear to be vested in the party making the conveyance The true point of inquiry in this case is, * * * First Department, February, 1906. * * * * [Vol. 111. whether the plaintiff did confer upon his brokers such an apparent title to, or power of disposition over the shares in question, as will thus estop him from asserting his own title, as against parties who took bona fide through the brokers. Simply intrusting the possession of a chattel to another as depositary, pledgee or other bailee, or even under a conditional executory contract of sale, is clearly insufficient to preclude the real owner from reclaiming his property, in case of an unauthorized disposition of it by the person so intrusted. 'The mere possession of chattels, by whatever means acquired, if there be no other evidence of property or authority to sell from the true owner, will not enable the possessor to give a good title.' * * But if the owner intrusts to another, not merely the possession of the property, but also written evidence over his own signature, of title thereto, and of an unconditional power of disposition over it, the case is vastly different. There can be no occasion for the delivery of such documents, unless it is intended that they shall be used, either at the pleasure of the depositary, or under contingencies to arise. * * In the present case, the plaintiff delivered to and left with his brokers, the certificate of the shares, having indorsed thereon the formn of an assignment, expressed to be made for value received,' and an irrevocable power to make all necessary transfers. The name of the transferee and attorney, and the date, were left blank. This document was signed by the plaintiff, and its effect must be now considered." * It was under that state of facts that the court held that the plaintiff was estopped from denying the right of the plaintiff's broker to transfer the stock. The principle announced in this case has been much discussed, and in Knox v. Eden Musee Co. (148 N. Y. 441) it was somewhat limited. The court there said: "The case of McNeil v. Tenth National Bank is a leading case on the subject, and marks the limit to which the court has hitherto gone in subordinating the rights of the true owner of a stock certificate to the title of a transferee derived under one who, being in possession of the certificate by the consent of the true owner, has transferred it in fraud of his rights. That case holds that an agent to whom the owner has delivered a certificate of stock duly indorsed for transfer, with a limited power of disposition for a special purpose, may bind the title thereto as against the true owner by transferring it to a App. Div.] First Department, February, 1906. * bona fide transferee who has no notice of the limitations of the agent's authority, although the transfer was made for an unauthor ized purpose and with the intention on the part of the agent to commit a fraud upon his principal. * * The courts have been frequently importuned to extend the qualities of negotiability of stock certificates beyond the limits mentioned and clothe them with the same character of complete negotiability as attaches to commercial paper, so as to make a transfer to a purchaser in good faith, for value, equivalent to actual title, although there was no agency in the transferrer and the certificate had been lost without the fault of the true owner or had been obtained by theft or robbery. But the courts have refused to accede to this view, and we have found no case entitled to be regarded as authority which denies to the owner of a stock certificate which has been lost without his negligence, or stolen, the right to reclaim it from the hands of any person in whose possession it subsequently comes, although the holder may have taken it in good faith and for value. The precise question has not often been presented to the courts, for the reason probably that they have with great uniformity held that stock certificates were not negotiable instruments in the broad meaning of that phrase, but, whenever the question has arisen, it has been held that the title of the true owner of a lost or stolen certificate may be asserted against any one subsequently obtaining its possession, although the holder may be a bona fide purchaser." To establish this estoppel it must appear that the true owner had conferred upon the person who has diverted the security the indicia of ownership, or an apparent title or authority to transfer the title. The reasoning in all the cases negatives the extension of the principle to a case where a stock certificate such as the one in question has been stolen or fraudulently obtained from the true owner; for there the owner of the stock had by no voluntary act conferred upon the third party the indicia of ownership, apparent title or right to transfer the stock, and so I assume that if the owner of a certificate of stock, with a valid transfer executed by the person in whose name the stock stood, should give it to a messenger to be carried to a bank for safekeeping and that messenger on the way should divert the stock and transfer it to a bona fide purchaser for value, such a transfer would not estop the owner from asserting title, First Department, February, 1906. [Vol. 111. for the reason that the owner had never conferred upon such a messenger an apparent title or the indicia of ownership. The plaintiff's testatrix on the twelfth of April, when this certificate of stock was in the possession of Webb & Prall, her brokers, was the owner of the stock, as was found by the jury upon evidence sufficient to sustain the finding. Assuming that Webb & Prall were authorized to deliver the certificate of stock to the messenger who presented plaintiff's testatrix's certified check to pay the loan, there was no authority for Webb & Prall to deliver this stock to the messenger in such a condition that the messenger would be invested with the apparent ownership or authority to transfer it. By no act of the plaintiff's intestate did she confer upon Weyant the ownership of the stock or the right to transfer or dispose of it. It cannot be assumed that she intended that the stock should be transferred to Weyant, or that Webb & Prall should deliver it to Weyant with a power of attorney in blank which would authorize Weyant to transfer the stock. It was her stock. She sent for it, but neither authorized Webb & Prall nor any one else to transfer it to Weyant, or to the defendant, nor gave any apparent authority to either of them for that purpose. No act of the plaintiff's testatrix was sufficient to estop her or her estate from insisting upon her title to the stock in the hands of the defendants, or any one else; and unless it is intended to confer upon certificates of stock the attributes of negotiable instruments, which the courts of this State have uniformly refused to do, the claim that the defendants here acquired, as against the plaintiff's testatrix, or as against her estate, any title to this stock, cannot be sustained. The only other points to be considered are those arising on the exceptions to rulings upon questions of evidence. Weyant was called for the defendants and testified that he had financial relations with the plaintiff's testatrix; that he knew that in November, 1901, 100 shares of the Erie preferred were purchased by Ennis & Stoppani for the benefit of the testatrix; that he was with the plaintiff's testatrix when she took this 100 shares of stock to Webb & Prall, about July 27, 1902; that the plaintiff's testatrix went to the office of Webb & Prall with the certificate and had it transferred in the name of Webb & Prall, so that they could receive the dividends on behalf of the plaintiff's testatrix; that on the afternoon of April 12, 1904, he went to the office of Webb & Prall with App. Div.] First Department, February, 1906. a check for $2,000 and the interest, and took up a certificate of 100 shares of Erie first preferred; that this certificate stood in the name of Webb & Prall, who had signed a blank power of attorney on its back, without any name being filled in as transferee, and he took the certificate back to the house of the plaintiff's testatrix. He was then asked whether he delivered the certificate of stock to the plaintiff's testatrix. This was objected to, the objection sustained and the defendants excepted. He then testified that he retained this certificate exclusively in his possession until August 14, 1904, when he delivered it to the defendants, and that he then notified. Mr. Hall, the husband of the plaintiff, to that effect; that he bad a conversation with Mrs. Hall (plaintiff) with reference to the certificate; that he subsequently directed the defendants to sell the stock, which they did, and turned the proceeds over to him. He then identified the signature of the plaintiff's testatrix to an instrument which was offered in evidence. The defendants claimed that it was error to sustain these objections to conversations between the witness and the plaintiff's testatrix, upon the ground that they were incompetent under section 829 of the Code of Civil Procedure." That section provides that "Upon the trial of an action, * * * a party or person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title, by assignment or otherwise, shall not be examined as a witness, in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator or survivor of a deceased person * * * concerning a personal transaction or communication between the witness and the deceased person." We think this evidence was properly excluded upon the ground that the witness derived his interest or title from the deceased within the provisions of this section. Weyant transferred this stock to the defendants, who accepted it and sold it upon his order and accounted to him for the proceeds. Their defense is that Weyant was the owner of the stock and entitled to dispose of it, and that their title as transferee of Weyant was a good title. It would be a direct violation of this provision of the statute to allow their title to be sustained by the testimony of Weyant as to personal transactions with the testatrix to show that Weyant had a title to the stock. The declarations of the plaintiff's |