209 P. 367 | Cal. | 1922
Lead Opinion
This action was instituted by the plaintiff for the partition of the lands of Santa Cruz island, situate off the coast of the county of Santa Barbara, and consisting of about fifty-eight thousand eight hundred acres of land, of which the plaintiff alleged that she and the defendants were tenants in common. The facts as set forth in the complaint and as found by the trial court may be briefly summarized as follows: Prior to the year 1911 the said Santa Cruz island was owned and possessed by a corporation known as the "Santa Cruz Island Company," the capital stock of which was divided into one hundred shares, of which the plaintiff herein was the owner and holder of seven shares, and of which remaining shares the defendants herein were the several owners and holders in various proportions. The license tax of said corporation due to the state of California for the year 1911 was not paid, as a result of which the charter of said corporation was forfeited to the state of California on the thirtieth day of November, 1911. At the date of said forfeiture the plaintiff, Aglae S. Capuccio, and the defendants, Arthur J. Caire, Fred F. Caire, Albina C.S. Caire and Delphine A. Caire, constituted and were the directors of said corporation, and, under the provisions of the law then obtaining with relation to the properties and affairs *516 of corporations whose charters had been forfeited, became the trustees of said defunct corporation for the purpose of the liquidation of its affairs; at the time of the forfeiture of the charter of said corporation there was no provision of law for the revivor or rehabilitation of corporations whose charters had been thus forfeited, but by the amendment of the statute in 1913 (Stats. 1913, p. 680) a method was provided for the revivor of the charters of corporations which had theretofore been or which might thereafter be forfeited; and in accordance with the method thus provided the said trustees of said corporation undertook to meet and take the necessary steps for the revivor of said corporation. Four of the five trustees, owning seventy-nine of the one hundred shares of the stock in the corporation, were present at such meeting and acted unanimously in taking the requisite steps to revive the corporate charter, but the plaintiff herein was not present at such meeting and did not consent thereto, and it is not claimed that by any act or omission on her part she has ever consented to the revivor of said corporation or to any other of the subsequent acts of said revived corporation or the trustees or directors thereof in attempting to deal with the property owned by said corporation at the date of the forfeiture of its said charter. Immediately after the attempted revivor of said corporation the trustees who had sought to accomplish the same turned over all of the assets of the theretofore defunct corporation in their hands, including the real estate in question herein, to the revived corporation, and the latter has ever since been in the possession and use thereof. In the month of January, 1917, a meeting was called of the trustees of the formerly defunct corporation, at which a resolution was attempted to be adopted confirming the title of the revived corporation to the real estate in question and authorizing a conveyance thereof by said trustees to said corporation; and, in accordance with said resolution, the four of said trustees who had been present and adopted the same joined in a conveyance purporting to convey the whole of said real estate to said revived corporation. The plaintiff herein, however, although notified of such meeting, did not attend the same, nor join in the execution of said conveyance, but on the contrary expressly protested against the *517 action taken at said meeting and the execution of said conveyance pursuant thereto.
In the meantime there had been several actions instituted and proceedings taken which have an important bearing upon the present litigation. In the year 1912, one Edmund A. Rossi, to whom had been transferred the interest of his mother, Amelia A. Rossi, in said corporation and the properties thereof, commenced an action in the superior court of the city and county of San Francisco against the former directors and then trustees of said corporation to obtain a judgment directing the distribution of certain moneys in the hands of said trustees among the stockholders of the defunct corporation, and also directing the sale of the real estate and personal property thereof, and the like distribution of the proceeds among said stockholders in the proportions of their several interests in said defunct corporation. The plaintiff herein was joined with the other trustees of said corporation as a defendant in said action, but, upon being brought into court, joined interests with the plaintiff therein as against her cotrustees. Upon the issues framed in said action the trial court made and entered an interlocutory judgment declaring that the charter of the corporation had been forfeited on November 30, 1911; that the then directors thereof had thereby become trustees of said defunct corporation and its stockholders, charged with the duty of liquidating its affairs and distributing among its stockholders their respective interests in its property after the payment of its debts. This decree directed the trustees to apply the money on hand to the settlement of the claims of creditors and to render an account of the same. While this was in process of being accomplished the plaintiff in that action applied to the court for, and was granted, an order requiring the trustees to distribute to the plaintiff and other stockholders the surplus funds in their hands and also to sell the real estate and personal property of the corporation in their possession, at public auction, and similarly distribute the proceeds arising from said sales. An appeal to this court was taken from this latter order and also from the order of the trial court refusing to vacate its interlocutory judgment and grant a new trial. Upon the determination of these appeals this court held that the *518
title to the properties of a corporation prior to its dissolution through the forfeiture of its charter was wholly vested in the corporation, and that the directors of such corporation did not, by virtue of their office, hold or possess any title to, or any interest in, the property of the corporation; that the statute providing for the forfeiture of the charters of corporations, while it provided that the former directors thereof should become trustees of the corporation and its stockholders, did not purport to invest such trustees with any title to the property formerly belonging to such corporation, but merely with the temporary right of possession thereof for the purpose of settling its corporate affairs; and that the title to the property of such corporation belonged, upon the forfeiture of its charter, to the persons who were its stockholders when it ceased to be a corporation, citingHavemeyer v. Superior Court,
This court, however, further held that it was not a necessary part of the statutory duty of the trustees to find a buyer for, or to sell the lands of the corporation, otherwise than might be necessary to settle its corporate affairs, and that if they had money enough on hand to pay all debts and expenses and if all other corporate affairs were disposed of, it would be no breach of their duty to deliver the possession of the land to the stockholders as tenants in common according to their interests therein; and that in the case before it the evidence did not sufficiently show any such breach of duty on the part of the trustees of said corporation in the course of the liquidation of its affairs as would serve to justify the making of the orders appealed from; it accordingly reversed the case. (Rossi v. Caire,
The decision of the above-entitled cause was handed down by this court on December 16, 1916. Thereafter, and on August 28, 1917, the said Edmund A. Rossi commenced another action in the superior court of the city and county of San Francisco against the same defendants as trustees of said corporation and also individually, to obtain an accounting and distribution, according to their respective interests, to the stockholders of said corporation of the property owned by the corporation at the time of the forfeiture *519
of its charter and of the proceeds thereof in the hands of the defendants as such trustees. The plaintiff in the present action was also made a defendant in that action both individually and as such trustee, and, upon appearing therein, joined with the plaintiff in seeking a like relief. The other defendants interposed a plea of the statute of limitations, alleging the action to be barred by subdivision 3 of section
While the above-entitled action was pending in the trial court or on appeal the plaintiff herein commenced the present action for partition of the lands and premises of said corporation known as Santa Cruz island. In her complaint herein she set forth at length the facts hereinbefore recited, relating to the forfeiture and subsequently attempted revivor of said corporation. She further expressly averred that the trustees of said defunct corporation, upon its attempted revivor, had divested themselves as trustees of all of its properties and effects and had transferred the entire possession and control thereof to said revived corporation, which had, ever since said acts, been in the full possession and control thereof.
The plaintiff further averred that "all debts of said dissolved corporation and all claims and demands against it have long since been paid, satisfied and discharged." The defendants upon their appearance did not deny these averments, but, on the contrary, expressly affirmed the same in their pleadings, alleging that their transfer of the possession and ownership of all of the property and effects of said former defunct corporation to the revived corporation was so far complete as to invest the latter with the full title to all of said properties and effects to the exclusion of the plaintiff and all of the other stockholders from all ownership and interest therein, other than as stockholders of and in the revived corporation. *522
The defendants did not deny the plaintiff's averment that all of the debts, claims and demands against said corporation had been paid and satisfied, but contented themselves with the averment that there were certain unsatisfied and outstanding credits belonging to said corporation. The defendants further pleaded, by way of both demurrer and answer, that plaintiff's alleged cause of action was barred by the provisions of subdivision 3 of section
As conclusions of law from the foregoing findings of fact the trial court repeated its finding as to the respective rights, interests and ownerships of the said parties as tenants in common of said property, and directed the entry of an interlocutory decree for the partition thereof among them according to their respective interests therein. From the interlocutory decree accordingly entered the appellants herein have prosecuted this appeal. They have also appealed from an order subsequently made and entered by the trial court refusing to vacate and set aside said decree, but since said order is in substance on order denying a new trial, the appeal therefrom is not permissible and is therefore dismissed.
[1] The first contention of the appellants herein is that on the 16th of May, 1918, the date of the commencement of this action, the plaintiff herein was neither in possession, nor had the right of possession, of the real property described in her complaint, or of any portion thereof, and hence could not maintain this action under the express terms of section 752 of the Code of Civil Procedure as it read at the date of the commencement of the action. The appellants cite, in support of their said contentions, the cases of Jameson v. Hayward,
In the second case of Rossi v. Caire,
[2] The appellants' next contention is that this action is barred by the provisions of subdivision 3 of section
[3] The final contention of the appellants is that the plaintiff ought not to have been permitted to maintain the present action by reason of the pendency of another action at the time of its institution, to which she was a party and to which the appellants herein and also her corespondent Rossi herein were also parties, and which, according to the appellants' contention, involved the same properties and the same cause of action as are involved in the present action. The appellants refer to the second case of Rossi v. Caire, supra, which appears to have been pending in the superior court of the city and county of San Francisco at the time of the commencement of the present action. It may be noted upon the threshold of this contention that such an objection or defense against the institution and maintenance of the present action would be in the nature of a plea in abatement, which, being a dilatory plea, must, under well-settled rules of procedure, be specially pleaded. The transcript before us contains nothing to indicate that such a plea was ever presented by the defendants in this action to the trial court in any pleading. Not having been so presented it would have been waived under well-settled rules regarding dilatory pleas. The appellants, however, assert in their brief that they did in fact apply to the *528 superior court of the county of Santa Barbara, in which the present action was begun and was pending, for leave to file a supplemental answer setting up this defense in January, 1920, about a year and a half after the commencement of the present action and when it was about to proceed to trial upon the pleadings and issues long since presented; and that the court denied their said motion. We cannot say, upon such a meager and quite irregular suggestion, that it was an abuse of discretion for the trial court to have refused to permit the making of such a belated defense; but aside from this it does not appear from the state of the record before us in the cases ofRossi v. Caire, supra, and of the present appeal, that such a defense was ever available to these appellants. The action ofRossi v. Caire instituted in the city and county of San Francisco on August 28, 1917, by a plaintiff other than this plaintiff was not an action for partition of the real property involved in the present suit. Had it been such an action it could not have been maintained in a county other than that in which said property was situated (Code Civ. Proc., sec. 392). It did not purport to seek a partition of real estate, but was simply a suit in equity, involving both real and personal property and requiring an accounting and determination of the rights and interests of the parties to said action therein; one of the essential parties to the present action, namely, Santa Cruz Island Company, which the appellants claim has succeeded to all of the rights and interests of the respondents and also of all of the other parties to the present action, was not a party to the action in Rossi v. Caire, supra, and hence could not be bound by any judgment rendered therein. Enough has been said to show that these two actions did not involve the same cause of action, the same properties, the same remedies or the same parties, and hence that the pending of the one would not have been a sufficient defense against the institution and maintenance of the other.
We perceive no errors in the record upon this appeal. The judgment is affirmed.
Shaw, C. J., Lennon, J., Waste, J., and Lawlor, J., concurred. *529
Dissenting Opinion
I dissent.
I dissent from the judgment and from that portion of the opinion which holds that the action is not barred by the statute of limitations. (Code Civ. Proc., sec.
I agree with the opinion that the right of the plaintiff to maintain this action in partition is necessarily predicated on her present right to the possession of the property involved. Her claim of present right to possession is in turn necessarily predicated upon the claim that the "action taken or performed by a majority of the trustees," in August, 1913, whereby they surrendered the possession of the property to the revived corporation, was invalid. Therefore I think that this action is one to "invalidate the action taken by a majority of the trustees," and comes within the terms of the statute.
The plaintiff recognized this, and in her complaint she alleges the invalidity of this transfer. She also recognized that this statute is applicable and sought to avoid it by alleging that this transfer was fraudulently made; but the trial court found against her on that issue. She also sought to avoid the statute by alleging that she had no knowledge of this transfer until April, 1918, but the trial court made no finding on this issue. The trial court expressly found that the said transfer was made by the trustees "in violation of their duties as trustees." This was in effect a finding that said transfer was invalid.
With respect to the question of the applicability of this statute of limitations, the case of Rossi v. Caire,
The decision of this court in that case holds that this statute is applicable to that case, but holds also that the *530 plaintiff therein was relieved from the operation of the statute because of the fact that he commenced his action within a reasonable time (one month) after the taking effect of the statute. Applying the same rule to this case wherein the action was not commenced until ten months after the statute took effect, we should hold that it is barred.
The effect of this decision, together with the two which preceded it in the Rossi cases, is that all corporations which forfeited their charters prior to 1913, and thereafter revived them, became thereby divested of all their property and assets. As a matter of substantive law, they could reacquire such title only by means of conveyances from all of their stockholders. In the case of corporations having a large number of stockholders this would be a practical impossibility. I presume that it was to meet this very situation that this statute of limitations was enacted, to operate as a statute of repose and to afford a practical means by which the property of a revived corporation would, in effect, become revested in it, after the lapse of six months, unless some action should be instituted in the meantime. The strict and narrow construction adopted in the main opinion has the effect of nullifying the statute to the extent that it might afford a practical remedy for the unfortunate situation above referred to.
This court has frequently declared that "statutes of limitation are vital to the welfare of society, and are favored in the law." It seems to me proper that this one, at least, should be liberally construed with a view to make effective the evident purpose thereof.
Rehearing denied.
All the Justices present concurred.
Richards, J., pro tem., was acting. *531