Johnston v. Bates, 95 So. 375

95 So. 375 | Ala. | 1923

The appellee, a trustee in bankruptcy, seeks by this bill to foreclose against capital stock in the Gulf Coal Company, Inc., issued to J. F. Johnston, the lien of a recorded judgment, to have ascertained and determined the claim or interest of H. B. Crocker and the Gulf Coal Company, Inc., in such capital stock, and to have pronounced the superiority of appellee's so asserted lien over the claims, interests, etc., of Crocker and the Gulf Coal Company, Inc. There has been no levy or attempted levy of execution, predicated of the original judgment or of the recorded judgment, on the capital stock issued to Johnston. The court overruled joint demurrer, by all respondents, containing but two grounds, viz. that there is no equity in the bill, and that the complainant's remedy at law was adequate.

The contention for appellants is that the statutory system for the registration of judgments and decrees (Code, §§ 4156, 4157) and, when effectually observed, imposing a lien on "all the property of the defendant in the county where filed, which is subject to levy and sale under execution," continuing the lien for 10 years from the date of the judgment (Code, § 4157), does not subject to such lien capital stock in a corporation. If capital stock in a corporation is subject to levy and sale under execution, and the registration statutes are observed, corporate stock is made, in terms by the statute (section 4157), the object upon which the lien of a recorded judgment or decree is imposed. It was decided in Berney National Bank v. Pinckard, 87 Ala. 577, 582, 6 So. 364, in exposition of statutes not different in pertinent respects from the present statutes, that positive law had placed "stocks in private corporations on the same footing as other personal chattels as to their amendability to levy either under execution or attachment."

Pertinent statutes, conducing to the conclusion expressed in the decision quoted, have been since re-enacted, and are hence impressed with the stated construction taken in Berney National Bank v. Pinckard, supra. Code 1907, § 3470, expressly declares stock in corporations and interests therein to be personal property. Subdivision 2 of Code, § 4091, subjects to levy of execution personal property, excepting "things in action"; but, since capital stock in private corporations are expressly declared by Code, § 3470, to be personal property; such stock is not within the exception of "things in action" provided in subdivision 2 of Code, § 4091. Corporate stock being amenable to levy and sale under execution, is a subject of the lien contemplated by the Code, §§ 4156, 4157.

Such was the conclusion upon which this court proceeded in Howard v. Corey, 126 Ala. 283, 28 So. 682, therein affirming that the lien created thereby did not depend upon the issuance of an execution. The lien provided by and consequent upon the observance of Code, §§ 4156, 4157, is a distinct lien from that commonly referred to as the lien resulting from an execution. Crawford Co. v. Anderton, 179 Ala. 573, 577, 60 So. 874; Goodbar v. Blackwell, 170 Ala. 232, 54 So. 532; Compton v. Sharpe, 174 Ala. 149, 56 So. 967; Enslen v. Wheeler, 98 Ala. 200,207, 13 So. 473.

Code, § 3474, is in no degree opposed to the view that capital stock may be subject to the lien of a duly recorded judgment. That statute is designed to afford a method at law for enforcing executions against corporate stock.

Code, § 3476 (codification of section 34 of the act of 1903 [Gen. Acts 1903, pp. 328. 329)], provides:

"All such corporations have a lien on the shares of its stockholders, for any debt or liability incurred to it by a stockholder, before a notice of a transfer or a levy on such shares,"

— and then invests the corporate creditor of the stockholder with authority and power to foreclose its lien upon the stock of its debtor by a sale according to its prescriptions. That this statute creates a lien in favor of the corporation on the stock of the debtor-stockholder for indebtedness therewith incurred prior to notice of levy or transfer of stock, is plain; but the statute (section 3476) creating this lien in favor of the corporation is not inconsistent with the statutes (sections 4156, 4157) creating a lien through the registration of a judgment or decree. Questions of priority between lienors under these statutes (Code, §§ 3476, 4156, 4157) may arise. The demurrer under consideration does not present the inquiry whether the present bill is sufficient in that particular.

Notwithstanding the statutory method providing for enforcing the lien of a recorded judgment through levy and sale under execution of property of the defendant in the judgment, the jurisdiction of a court of equity, without the intervention of other equitable ground, may be invoked to subject property to the lien of a recorded judgment; the statutory remedy by execution not being exclusive, but additional or cumulative only. Duncan v. Ashcraft, 121 Ala. 552, 555, 25 So. 735; Gurley v. Robertson, 178 Ala. 326, 332, 59 So. 643; Enslen v. Wheeler, 98 Ala. 200, 13 So. 473. It was neither the intention nor the effect of merely admonitory expressions, in Griel v. City of Montgomery, 182 Ala. 291, 298, 299, 62 So. 692, Ann. Cas. 1915D, 738, to repudiate the doctrine of the decisions last cited.

Apart from these considerations, requiring the conclusion that the bill contains equity, it possesses equity in the aspect that it seeks the composure or vindication of claims to corporate stock, by an asserted lienor of such stock. Howard v. Corey, 126 Ala. 283, 28 So. 682.

According to the bill's averments, J. F. Johnston was the owner of the corporate stock in question.

The decree is affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.