10 S.E.2d 923 | Ga. | 1940
Petition for injunction and receivership, impressment of trust, and other equitable relief, held not subject to general demurrer or motion to dismiss.
It is alleged that by this assignment from Fuqua to Belle Isle, and by the acceptance of Belle Isle, the latter assumed responsibility for the payment of the corporate debts, a list of which is attached to the petition, and the total of which amounts to $3063.21, including an alleged debt of $1140 to the petitioner for a loan of money, evidenced by a pleaded writing. This was dated July 25, 1938, signed by the corporation, and acknowledged receipt of such money, to be repaid on September 23, 1938. It is further alleged, that no part of this debt has been paid, after demands on the corporation, Fuqua, and Belle Isle, and the principal is due with 6 per cent. interest from maturity; that before the transfer to Fuqua, he and Belle Isle had notice of this and other corporate debts, the list attached to the petition having been furnished to them; that because of said transactions the corporation has no assets, and its debts to petitioner and other creditors, in whose behalf he also proceeds and asks relief, remain unpaid, and the property in the hands of Belle Isle was and is impressed with a trust for the payment of such debts; that the assumption of these debts should be enforced for the benefit of petitioner and others similarly situated, on equitable principles; and that the defendants plan to transfer the properties to a corporation, as to which the particulars are not known. The prayers are, that petitioner have judgment for his debt against Belle Isle; that said properties in the possession of Belle Isle be decreed to be impressed with a trust for the payment of the corporate debts; that a receiver be appointed to take possession of said properties; that Belle Isle be enjoined from transferring or using any of said assets pending determination of the case; that the non-resident defendants be served by publication; and that other and further relief as might be proper be granted. After a hearing, with the plaintiff and the defendant Belle Isle present, a temporary restraining order was granted, and a receiver appointed.
Belle Isle filed a motion to dismiss, and general and special demurrers to the petition and most of the paragraphs, on the grounds: that the petition stated no cause of action against this defendant, either as an individual or as trustee; that the petition invoked two inconsistent remedies, the recovery of a personal judgment against Belle Isle, and the impression of a trust on the corporate assets for the payment of the debt; that the plaintiff by asking and obtaining *884
a receiver had already made an election between such remedies, and was not entitled to a judgment; that for the reasons stated the petition contained a misjoinder of causes of action, was multifarious and duplicitous, and the plaintiff should be put to an election; that the petition failed to show any privity between the plaintiff and this defendant, since he was not a trustee for the plaintiff; that the averments and attached instruments showed no liability on the part of the defendant; and that certain paragraphs were conclusions of the pleader, or stated matters only on information and belief, without facts, as to the transfer of assets, the liability of the defendant, the capacity in which Fuqua acted, and the assumption of debts, and such paragraphs should be stricken. The defendant excepted to the overruling of the demurrers and the motion to dismiss.
1. Where a debtor conveys property to another person, and the vendee as a consideration agrees to pay the debts of the vendor, a creditor of the vendor may enforce the assumption agreement against the vendee by a suit in equity with proper pleadings and parties. Sheppard v. Bridges,
2. Where a corporation owing debts transfers its entire assets to a vendee on the consideration that he pay its debts, and he fails to do so, the corporation is to be regarded as in a state of insolvency. Such a transferee takes the assets cum onere, impressed with a trust in favor of creditors; and in an equitable suit by a creditor in behalf of himself and other creditors, against the corporation and the vendee, the assets may be impressed with the trust or right of payment in favor of creditors. An injunction against any further transfer of the assets, and an appointment of a receiver, if necessary to protect this right of creditors, are proper. See The Anvil v. Savery,
3. While a plaintiff may not invoke the aid of the courts upon inconsistent theories or principles of redress, based on the same facts, but is put to an election between such alternative remedies, and a choice once made will operate as a bar to the other remedy (Bacon v. Moody,
4. The petition not being subject to any of the grounds of demurrer stated, or to other special grounds relating to alleged conclusions *886 or statements on information and belief, as indicated in the statement of facts, the court did not err in overruling the demurrers on all grounds.
Judgment affirmed. All the Justices concur.