71 So. 419 | Ala. | 1916
Lead Opinion
The bill in this case is filed by the appellee as receiver for the Sun Life Insurance Company of America, for the purpose of subjecting the unpaid subscription of appellant, a stockholder in said insurance company, to the payment of debts due by said company. The bill shows the organization of the Sun Life Insurance Company of America as an Alabama corporation on October 4, 1913, and its dissolution by a decree of the city court of Birmingham on December 22, 1914, in a suit wherein the state of Alabama, upon the relation of the Attorney General, was complainant and said corporation was respondent. In that cause it was adjudged that the said insurance company had forfeited its right to do business, that it was an insolvent corporation, that its property and assets constituted a trust fund for the payment of its creditors, and that the said corporation be dissolved; and it was further decreed that R. G. Hewitt be appointed receiver of the said' company and be authorized and directed to take charge of all its assets and proceed to collect, by suit or otherwise, all claims and indebtedness, and especially all unpaid subscriptions. — Code 1907, § 45524.
In the fifth paragraph of the bill it is averred that said insurance company is insolvent and has not property and assets sufficient to pay its creditors; the discrepancy between its assets and its liabilities being the sum of $20,000. It is further alleged
A summary of the other averments of the bill, charging fraud in the said note, will appear in the report of the case. The eighth paragraph of the bill shows that the 130 shares of stock for which the note was given were either delivered to said respondent or were always subject to his demand. In the concluding paragraph of the bill it appears that the respondent was the president of said insurance company up to within a month of its dissolution, and that he organized the company and had dominated its affairs up to that time.
So, also, is the following excerpt from the more recent case of Pankey v. Lippman, 187 Ala. 204, 65 South. 773: “As to the second phase of the bill, namely, wherein it is sought to enhance the assets of a dissolved corporation by compelling payment of unpaid subscriptions for stock, the authority of Drennen v. Jenkins, 180 Ala. 261, 60 South. 856, concludes against the appellant’s contention that a judgment at law is a condition precedent to the equity of a creditor’s bill to exact of stockholders the satisfaction of their liability on unpaid subscriptions for capital
In Glenn v. Semple, 80 Ala. 159, 60 Am. Rep. 92, it is said: “It is now * * * well settled that courts of equity may enforce the payment of stock subscriptions, where the directors have neglected or refused to make assessments and calls for them in the exercise of their proper fiduciary duty.”
See, also, in this connection, Hall & Farley v. Ala. Co., 143 Ala. 464, 39 South. 285, 2 L. R. A. (N. S.) 130, 5 Ann. Cas. 363; Sherrill v. Hutson, 187 Ala. 189, 65 South. 538; Pickering v. Townsend, 118 Ala. 351, 23 South. 703; Sanger v. Upton, 91 U. S. 56, 23 L. Ed. 220; Dill v. Ebey, 27 Okl. 584, 112 Pac. 973, 46 L. R. A. (N. S,) 440, and note; Hall & Farley v. Ala. T. Co., 173 Ala. 398, 56 South. 235.
An examination of the authorities therefore discloses that the general equity of the bill is well settled and need not be rested upon the theory of a fraudulent transfer of the chose in action. The averments of the bill in regard to the cancellation and surrender of the respondent’s note seem to have been thrown in by way of anticipation of the defense, and for the purpose of showing that there had been in fact no bona fide settlement or discharge of said obligation. While these averments might disclose a greater necessity for resort to a court of equity, yet they are not essential to the equity of the bill, as above stated. As said by the court in Hall & Farley v. Ala. T. Co., supra: “After extended and mature consideration of the question we * * * now hold that fraud in the transfer or in the withholding of the amounts from the creditors is not necessary to equity jurisdiction in cases like this.”
See, also, section 324, and note, for numerous instances of suits of this character brought by receivers; also note to Dill v. Ebey, supra, 46 L. R. A. (N. S.) 452; Cole v. Satsop R. Co., 9 Wash. 487, 37 Pac. 700, 43 Am. St. Rep. 858; 34 Cyc. 390; Merchants’ Nat. Bk., Chicago, v. N. W. Mfg. Co., 48 Minn. 361, 51 N. W. 119; Hightower v. Thornton, 8 Ga. 486, 52 Am. Dec. 412; Stillman v. Dougherty, 44 Md. 380.
The Sun Life Insurance Company of America was dissolved and the complainant in this cause appointed receiver therefor by the city court of Birmingham, a court exercising equity jurisdiction, in conformity with the provisions of section 4552 of the Code of 1907. That section provides, among other things, that: Such court “may make all orders and decrees needful in the premises, and may appoint agents or receivers to take possession of the property and effects of the company, and to settle its affairs, subject to such rules and orders as the court may from time to time prescribe according to the course of proceedings in equity.”
The receiver is appointed not only for the purpose of taking possession of the property, but to settle'its affairs under the rules and orders of the court from which he receives his appointment, and the statute clearly shows that the court is vested with full power and jurisdiction over the subject-matter for the purpose of winding up the affairs of the. dissolved corporation.
In the case of Montgomery Bank & Trust Co. v. Walker, 181 Ala. 368, 61 South. 951, the first assignment of demurrer to the
The statute clearly looks to a final settlement of the affairs of the corporation, and certainly its affairs could not be settled until its debts are collected. In Cartwright v. West, 173 Ala. 202, 55 South. 918, this court, speaking of the rights and duties of a trustee in bankurptcy, said: “The trustee in bankruptcy in a sense is a representátive of both the bankrupt and the creditors. As such he succeeds in right and title to the bankrupt’s estate for the benefit of his creditors. He may, as a general rule, maintain all actions, both at law and in equity, for the recovery and preservation of the assets, both real and personal, of the bankrupt’s estate that the bankrupt himself, but for the bankruptcy, could have maintained. Even more, he may maintain an action the bankrupt could not, where, as in the present case, he seeks to avoid conveyances made by the bankrupt in fraud of his creditors. In this latter instance it cannot be said that the trustee is a representative of the bankrupt, for he [the bankrupt] could not mainain such a bill, nor in any legal or equitable proceeding become a beneficiary of his own fraudulent act.”
We are of the opinion that the receiver appointed in this case, acting under orders of the court appointing him — a court of competent jurisdiction, with full power to settle the affairs of a dissolved corporation — has rights and duties of a kindred character to those of a trustee in bankruptcy so far as the question here concerned is involved, and that the above-quoted language is applicable to the receiver in this cause. We are therefore clearly of the opinion that the suit is properly brought by this receiv
We have treated the important questions presented by this appeal and argued by counsel for appellant, and our conclusion is that the decree of the chancellor overruling the demurrer is correct, and the same is here accordingly affirmed.
Affirmed.
Rehearing
ON APPLICATION FOR REHEARING.
As appears from the opinion rendered in this cause, we have treated the bill as one filed for the benefit of the creditors, and, so considered, we are still of the opinion that it is free from any defect pointed out by the demurrer.
The demurrer is addressed to the bill as a whole. The bill clearly alleges the insolvency of the company and shows a judicial ascertainment of such insolvency and a decree of dissolution of the corporation. In addition to this, it is further averred that: “Said insurance company is insolvent and has not property and assets sufficient to pay its creditors, the discrepancy between its assets and its liabilities being the sum of $20,000.”
Under the averments of the bill, therefore, here confessed by demurrer, there is no occasion to enter into a discussion of the insistence here urged. Should there result, contrary to the averments of the bill, any surplus fund for distribution to the
As to the right of the complainant as receiver to maintain this suit, we are content with what was said in the original opinion in this cause.
The application is overruled.