66 W. Va. 696 | W. Va. | 1910
The Billmyer Lumber Company, a co-partnership, obtained a decree in the circuit court of Preston county, against the property of the Merchants Coal Company of West Virginia, a corporation, organized under the laws of this State, for satisfaction of a judgment, rendered in its favor against the Merchants Coal Company of Baltimore City, a corporation, organized under the laws of the State of Maryland, and the said Merchants Coal Company of West Virginia has appealed.
The Merchants Coal Company of Baltimore City, a foreign corporation, having obtained the right to do business in this state, was sued at law by the Billmyer Lumber Company, on a contract for the sale, by the defendant to the plaintiff, of the standing timber on a certain tract of land, which the former violated. That action was begun on the 28th day of July, 1904. On the 15th day of December, 1904, said Merchants Coal Company of Baltimore City conveyed all of its property in West Virginia, including various tracts of coal lands and its rights and franchises, to the Merchants Coal Company of West Virginia. Sometime in the same year, but just when the record does not show, the Merchants Coal Company of Baltimore City was deprived of its right to do business in this state upon a quo war-ranto proceeding, because of its non-payment of its annual license taxes and non-compliance with the laws of the state, relating to foreign corporations. Notwithstanding this, the plaintiff continued to prosecute its action and obtained a verdict, on the 26th day of May 1906, and a judgment on the 24th day of October, 1906, for $5,000.00. It then followed the property of the old corporation into the hands of the new one, by the institution of this suit, basing its right to do so on the express assumption of the indebtedness of the old company by the new one, alleged actual and constructive fraud in the conveyance, and the implied trust in the assets of an insolvent corporation in favor of its creditors. The bill charges actual fraud, saying the conveyance was made with intent to hinder, delay and defraud the
One contention, set up in the answer, if sound, would wholly defeat the object of the suit. It' is, that the demand of the plaintiff, having been, at the date of the deed, an unliquidated claim for damages for the breach of a contract, was not a debt of the grantor, rvithin the meaning of the recital of the deed, saying the property was conveyed “'in consideration of the express assumption of, and the agreement by the said party of the second part to pay and discharge, when due, all of the indebtedness of said party of the first part, of whatsoever kind and to whomsoever due.” It seems to us that the intention, on the part
Another contention is that the judgment obtained against the Merchants Coal Company of Baltimore City, after the loss of its right to do business in this state and the conveyance of all of its property to the appellant, is not binding, either on the question of liability or the amount of the damages, and it is insisted that the Merchants Coal Company of West Virginia had the right to litigate the question of liability and amount in an action at law. We are unable to concur in this view. Conceding, for the purposes of the argument, that the plaintiff could have sued the grantee in the deed at law, on its express assumption of the debts and liabilities of the grantor, treating this covenant as a contract made for its benefit, it is equally clear that it was not bound to do so, nor deprived of its right to sue the immediate party to
The charge of invalidity of the judgment stands upon another ground also, namely, that after the revocation of the right of the Merchants Coal Company of Baltimore City to do business in this state, all proceedings against it must necessarily have abated, wherefore a judgment acquired after that date must be void. In our opinion, this position is also untenable. Although the corporation lost its right to do business in this state, it is not shown to have been dissolved or in any way to have lost its corporate existence, if that would make any difference. For all that appears in this record, it may be a live, active, solvent and prosperous corporation in the state of its creation. We know nothing against it except that it has lost its right to do business in this state, has divested itself of all of its property and left this demand unprovided for, except in the manner stated in the deed. Although not entitled to do business in this state any longer, it could be sued here upon a demand of this land, if service could be had upon it, and it is not disputed that it was served with process in the action at law while it was rightfully doing business within the state. It is not pretended it did not have the right to make the contract on which it was sued at the time it was made, nor that it was not actually and rightfully doing business in the state at that time, and at the time of the institution of the action against it. An action to enforce a contract, lawfully made, may be instituted in a state in which the plaintiff has not acquired the
It is more seriously and urgently insisted, by counsel for the appellant, that the only remedy left to the plaintiff, on the
Our conclusion, therefore, is that the revocation of the privilege of the defendant corporation to do business in this state left it in the situation of an expired domestic corporation in respect to actions pending, or subsequently brought, against it; that the remedies in equity, given to creditors of corporations by the provisions of chapter 53 of the Code are not exclusive and do not prevent recovery of judgments at law against corporations after expiration of their charters; and that the circuit court did not lose the jurisdiction over the defendant which had attached before the revocation of its right to do business in the state.
The conclusions just announced may include the further proposition that, on the' expiration of the right of a foreign corporation to do business in this state, its assets, within the
The property sought to be charged in this suit was conveyed in consideration of an express assumption of, and agreement to pay, the demand of the plaintiff. The debt so .assumed either became, in equity, an actual lien upon the property conveyed or conferred upon the creditor the power to charge his debt upon the property as a lien by a suit in equity for the purpose. Whether, from the date of the deed, it constituted such a lien as would bind subsequent purchasers and creditors, we are not called upon to determine, but it is well settled that the creditor can charge the land in the hands of the grantee. Matheny v. Ferguson, 55 W. Va. 656; Vanmeter v. Vanmeter, 3 Grat. 148; Williard v. Worsham, 76 Va. 392; Tyson & Others v. Railway Co., 15 Fed. Rep. 763; Clyde v. Simpson, 4 O. St. 445; Harris v. Fly, 7 Paige (N. Y.) 421; Hallett v. Hallett, 2 Paige (N. Y.) 14; Nichols v. Glover, 41 Ind. 24; King v. Denison, 1 Ves. & Bea. 272. “Another class of implied liens or trusts arises where property is conveyed inter vivos, or is bequeathed! or devised by last will and testament, subject to a charge for the payment of debts or other charges in favor of third persons. In such cases although the charge is treated as between the immediate parties to the original instrument as an express trust in property, which may be enforced by such-parties or their proper representatives, yet as between the trustee and the cestuis que trust who are to- take the benefits of the instrument it constitutes an implied or constructive trust only, — a trust raised by courts of equity in their favor, as an interest m rem capable of being enforced by them directly bjr a suit brought in their own names and right.” Story’s Eq. Jur., sec. 1244. It is not difficult to reconcile this conclusion with principles of law and equity. Where the statute of frauds requires the declaration of a trust to be in writing, the recital of the assumption of the indebtedness in the deed is held to be sufficient evidence in writing of the declaration. Equity looks upon the unpaid consideration as so much of the purchase money of the property appropriated by the debtor.to the payment of his debt, and left in the hands of the grantee to be applied thereto. Therefore, bjr the contract, an express duty is devolved
There is nothing in the objections that the stockholders of the foreign corporation and the bond holders of both should have been made parties. The Merchants Coal Company of Baltimore City had parted with all interest in the property the plaintiff seeks to charge in this suit, and it was not a bill to wind up either corporation.. Hence, the stockholders of the old corporation were not interested and no relief was asked against those of the new. The bond holders were fully represented by the trustees, as the mortgages vested broad and ample powers of representation in them. In each of these instruments, the trustee was expressly clothed with authority to represent and act for the bond holders in all matters pertaining to their security and enforcement of their rights under the mortgages. Jones Corp. & Hort., sec. 398.
As the International Trust Company was a foreign corporation, proceeded against by order of publication, and did not
Lack of a reference and adjustment of liens, with respect to amounts and priority, is unavailing as a ground of error, since there is no decree of sale of the property nor any particular status, with reference to other liens, accorded the one declared in favor of the plaintiff. Nothing has been decided, so far, except the liability of the property to the lien of this debt. A reference may become necessary in the further progress of the cause. That will depend upon the course hereafter pursued by the appellant. If it pays the debt and costs for which it and the property in its hands are liable, neither a reference, sale nor any further decree will be necessary.
Failure to demand payment before suing has nothing to do with the subject of cost. It sometimes bars an action, as in the case of a bailment, but not one founded upon such a cause of action as we have h.ere. Kuykendall v. Fisher, 61 W. Va. 87.
For the reasons stated, the decree will be corrected by inserting therein the words, “upon the order of publication duly published and posted as to” before the words, “International Trust Company of Baltimore City,” and, as so amended, it will be affirmed.
Modified and Affirmed.