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Strong v. Doty, 32 Wis. 381, where land was conveyed in trust to be devoted to a designated use, the court held that because there were no words in the deed expressing an intent that the land should revert, there was no condition subsequent. In Craig v. Wells, 11 N. Y. 315, it was decided that a clause in the deed excepting and prohibiting specified uses of the land, did not create a condition. In Thornton v. Trammell, 39 Ga. 202, the words, "it being expressly understood that said tract is not to be put to any other use than" (specifying it), were held to create a covenant, but not a condition. In Packard v. Ames, 16 Gray, 327, it was held that a grant for a specified purpose, without other words, cannot create a condition. In Sohier v. Trinity Church, 109 Mass. 1, the words "in trust, nevertheless and upon condition always" (to use the premises for public worship), in a deed to a religious corporation, were held to create only a trust, and not a condition. It has been very earnestly contended on the part of the appellees that the cases of Reed v. Stouffer, 56 Md. 236, and Second etc. Soc. v. Dugan, 65 Md. 460, are directly in point as sustaining their view, but such is not the effect of the two cases. In both cases the property was conveyed to trustees in trust for certain uses and purposes, clearly defined in the deeds, and in each case the legal estate vested in the trustees for the purposes of the trusts. A totally different state of case to the one presented here, and in no respect entitled to be considered as controlling the question in controversy here. It results from what we have said that the court below committed error in granting the appellees' first prayer and in rejecting the appellant's fourth prayer, which should have been granted. The judgment below is therefore reversed, without a new trial.

CONDITIONS SUBSEQUENT-WHEN CREATED.-Conditions which tend to divest an estate are to be strictly construed: Note to Jackson v. Schutz, 9 Am. Dec. 202, giving instances of conditions subsequent. Conditions subsequent are not favored, and may be created only by express terms or clear implication. The courts will always construe clauses in deeds as covenants rather than as conditions, if they can reasonably do so. Though apt words for the creation of a condition subsequent are employed, yet in the absence of an express provision for re-entry and forfeiture, the courts, from the nature of the acts to be performed or prohibited. from the rela tion and situation of the parties. and from the entire instrument, will determine the real intention of the parties: Scovill v. McMahon, 62 Conn, 378: 36 Am. St. Rep. 350, and note. A deed of land to a municipality which in the haberdum adds the words, "as and for a street to be kept as a public highway" does not create a condition subsequent, and the property does not revert to the failure to use it as a street: Kilpatrick v. Mayor of Baltimore, 81 Md. 179; 48 Am. St. Rep. 509, and note.

KERR V. URIE

[86 MARYLAND, 72.]

A MARRIED WOMAN IS CAPABLE OF ACQUIRING STOCK, and being a stockholder, in a national bank, whether doing business in the state of her residence or in another state.

HUSBAND AND WIFE.- A TRANSFER BY A HUSBAND TO HIS WIFE OF STOCK IN A NATIONAL BANKING COR. PORATION, made in good faith, vests her with the ownership thereof, and her equitable title is complete before a certificate is issued to her and before any entry of the transfer is made on the books of the corporation. After such transfer the husband is not subject to any liabilities which attach, under the laws of Congress, to the holders of stock in such corporations.

NATIONAL BANKS-STOCKHOLDER'S LIABILITY, WHO HOLDS STOCK IN TRUST.-One to whom stock in a national bank has been issued as self-appointed attorney of an infant of tender years, or for an undisclosed principal, is subject to the liabilities imposed by the acts of Congress upon stockholders in such banks.

CORPORATIONS--STOCKHOLDER'S LIABILITY AS DEPENDENT UPON BOOKS OF.-If, upon the books of a national banking corporation, one appears to be the owner of stock therein, be cannot escape liability by proving that he held it as trustee for some other person whose name and interests do not appear from such books.

James A. Pearce, for the appellant.

Charles F. Harley and John D. Urie, for the appellee.

78 FOWLER, J. The question presented by this appeal is, whether a married woman residing in this state is capable of holding stock in a national bank located and doing business in the state of Texas, and, if so, whether she is liable as such stockholder under the personal liability provisions of section 5152 of the Revised Statutes of the United States.

Whatever difficulty may surround this question arises, we think, more from the manner in which it is presented in this case than from any other cause, for it can hardly be supposed that at this day when, by the law of most all the states, a married woman may contract as a feme sole in respect to her separate estate, she is without power to subscribe for or become the transferee of the stock of a national bank. The learned author of Cook on Stocks and Stockholders, expresses the opinion that, without doubt, a married woman may become the transferee of such stock: Cook on Stocks and Stockholders, sec. 250. Certainly a feme sole may be such a stockholder, and would undoubtedly be subject to all the personal liabilities imposed 74 by section 5152 of the Revised Statutes. And, if this be so, what would be the effect of her marriage upon her right

to hold bank stock? Would she be any the less a stockholder after than before her marriage? There is certainly nothing in the acts of Congress which can be held to exclude married women from the privilege of owning this class of valuable personal property.

The question before us is thus presented: It appears from the agreed statement of facts that in April, 1891, the defendant, John D. Urie, purchased for the benefit of his infant daughter, a child four years old, ten shares of the capital stock of "The City National Bank of Quanah," and that his wife requested that the certificate therefor should be placed in her name, which was accordingly done. The bank having called upon Mrs. Urie to pay into its surplus two hundred and fifty dollars, she was unable to do so, and the defendant, her husband, agreed to and did furnish the money the bank had called for, provided the stock in question would be transferred to him to be held for the benefit of their infant child, as Mrs. Urie had held it in the first instance. The original certificate which had been issued to her, was accordingly surrendered, and another was issued to the defendant in February, 1892, which he subsequently transferred to her at her request, and in consideration of one hundred and twenty-three dollars and ten cents paid to him by her. It is admitted that this transfer is bona fide and for value. The assignment by the defendant was to his wife as attorney, and the certificate was so drawn, but it appears by the agreed statement of facts that the stock was issued to and held by Mrs. Urie personally, as shown by the stub of the stock book. The bank having become insolvent, a receiver was duly appointed, who has instituted suits against the stockholders of said bank to enforce the personal liability provided by section 5152 of the Revised Statutes. But instead of suing Mrs. Urie, who, according to the books of the bank, is the holder of the stock, suit has been brought against her husband, upon the theory that his transfer of 75 the stock to her is void, not, however, by reason of any fraud, or irregularity in the transfer, but upon the sole ground that Mrs. Urie, being a married woman, is incapable of being a stockholder. Such a proposition at first blush would seem to be altogether untenable, nor do we think this first impression has been overcome by any argument we have heard. It is too late at this day to regulate the property rights of married women by the ancient common law of England. That has been abrogated in this country almost universally, and as Mr. Cook says, married women may doubtless,

in all the states, become transferces of bank stock, and the learned counsel for the appellant is forced to admit that if the law as thus laid down is to prevail, his proposition must fail.

If the question before us had arisen out of a contract conceded to be a Maryland contract, we think there could not have been any doubt as to the legality of Mrs. Urie's holding, for under our statute all the property, real and personal, belonging to a woman at the time of her marriage, and all property which she may acquire by purchase, gift, grant, devise, bequest, descent, or in course of distribution, she shall hold for her separate use, etc. There can be no doubt, therefore, that a married woman who is in possession of bank stock before she is married, or which after marriage came to her as provided by the statute, she would hold it as her separate property as provided by the code. The fact that her power of disposition may be limited makes her none the less a stockholder. But it is said the contract is not a Maryland contract, but is a contract made in Texas, and that therefore the rights of the parties must be determined by the law of the latter state. And this contention is based upon the proposition that a subscription made in one state to capital stock of a corporation which exists in and carries on its business in another state, is a contract to be performed in the latter state and is governed by the laws of that state. While this general proposition may be conceded, yet it must be remembered that the contract we are 76 considering is not the contract of subscription, but the contract by which the defendant transferred to his wife the stock already subscribed for by her. It would seem to follow if the contention of the appellant be correct, namely, that Mrs. Urie has no legal capacity to subscribe for or hold the stock, that the original contract of subscription which was made by her and in her own name, although the money was furnished by her husband, was null and void; and therefore no liability ever arose under section 5152 of the Revised Statutes, and hence the defendant never incurred any liability thereunder, unless the mere fact that he furnished the money to pay for the stock would make him so liable-and this cannot be, because the liability under section 5152 of the Revised Statutes, attaches only to persons who are stockholders, either in their own right, or in some representative capacity not exempted by the express terms of that section. But be this as it may, we have already said the question now before us is the validity of transfer of the stock by the defendant to his wife. By means of this con

77

tract of transfer, which was made in this state by two citizens of this state, and therefore to be governed by the laws of this state, the defendant in good faith and for value assigned, and we think had a right, no creditor of his objecting, to thus assign it. The contract was complete when the transfer was made, and his ownership of the stock, which is conceded, carried with it, according to the weight of authority of the later decisions, the right to make the transfer, because stock is characterized by the same features as other forms of personal property. Nor was it essential to the transferee's equitable title that she should have a new certificate issued to her. It was said by Davis, J., in the leading case of New York etc. R. R. Co. v. Schuyler, 34 N. Y. 81, " that the nonproduction and surrender of the certificate at the time of transfer is not fatal to the title of the transferee. It is only essential to the safety of the corporation." And in Baltimore City etc. Ry. Co. v. Sewell, 35 Md. 238, 6 Am. Rep. 402, it is said that when shares are assigned, although not made on the books of the corporation, title passes to the assignee. In later cases (Baltimore etc. Brick Co. v. Mali, 65 Md. 96, 97; 57 Am. Rep. 304; Swift v. Smith, 65 Md. 435; 57 Am. Rep. 336, and Noble v. Turner, 69 Md. 524), it was held that such a title is an equitable title, giving to the transferee the right to enforce actual entry of the transfer upon the books of the corporation, and thus to convert the equitable into a legal title. We conclude, therefore, that by virtue of the transfer in Maryland, and without regard to the laws of Texas, Mrs. Urie became the equitable and real holder of the stock in question, and if this be so, no question as to her powers of disposition, or as to whether she is or is not capable under the laws of Texas to make contracts can arise in this case, for the liability of a stockholder arises not under any law of Texas, which it is contended has not been proven in this case, but under the act of Congress. And the contracts which it is claimed she is liable on are not her contracts, but the contracts of the bank: Witters v. Sowles, 35 Fed. Rep. 641; U. S. Rev. Stats., sec. 5152. The right to be a stockholder is given to her by the law of the state where she resides, and her rights and liabilities as such are provided by the acts of Congress. But if we could, without proof, say what is the law of Texas, it will be found upon this question the same substantially as ours, "All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterwards by gift, devise, or descent. . . . shall be the separate property of the wife": Tex. Rev. Stats., sec. 2967.