No. 30 | 3rd Cir. | Dec 18, 1903
These appeals were taken as follows from:
(1) The decree or order of April 3, 1903, denying the appellant’s petition for leave to intervene in the foreclosure suit against the Asphalt Company of America, the third of the above-entitled causes, as a stockholder of that company, and to defend the same.
(2) The decree or order of July 6, 1903, denying the appellant’s petition, appealing from the determination of the receiver, in the above consolidated cause, not to include in his report, filed June 4, 1903, petitioner’s claim as a holder of a collateral gold certificate issued by the Land Title & Trust Company to him as trustee of the debt owed to it by the Asphalt Company of America, and for the security of which the said trustee held the stocks of certain constituent companies.
(3) The decree or order'of July 20, 1903, denying the appellant’s petition to intervene in the above-entitled consolidated cause, as stockholder and creditor of the Asphalt Company of America.
The statements of fact, so far as they are uncontroverted and disclosed by the records in these three appeals, and necessary to the understanding of the litigation out of which they grew, are, in outline, as follows:
The Asphalt Company of America, a New Jersey corporation, was organized in July, 1899, with an authorized capital of $30,000,000, represented by 600,000 shares of the par value of $50 each. It was organized to acquire, and did thereafter acquire, the stock of certain other so-called “constituent companies,” and caused to be given in exchange ¡therefor, collateral gold certificates, amounting in the aggregate to $29,900,700 issued by the Land Title & Trust Company, as trustee, to which the Asphalt Company of America had theretofore conveyed, by way of pledge or mortgage, as security for said certificates, all of the said stocks of the said constituent companies, together with all income and dividends to be derived therefrom. Said company also issued its entire capital stock, on each share of which $10 was paid.
On May 3, 1900, the National Asphalt Company was organized under the laws of the state of New Jersey, with an authorized capital stock of $15,000,000. On August 15, 1900, its certificate of incorporation was amended; its capital stock was increased to $22,000,000, consisting of 440,000 shares of the par value of $50 each, of which 200,000 shares were preferred and 240,000 shares were common stock. Pursuant to a proposal made by the said National Asphalt Company to the stockholders of the Asphalt Company of America, dated September 13, 1900, and accepted by the holders of a large majority of the stock of said company, 596,252 of its shares were duly acquired by the National Asphalt Company, according to the terms of said proposal. In consideration of the premises, and of the obligations of the National Asphalt Company, under said proposal, a tripartite agreement was executed on December 31, 1900, between the Asphalt Company of America, the National Asphalt Company and the Land Title & Trust Company. Under said agreement, the Asphalt Company of America deposited with its trustee, the Land Title & Trust Company, the $6,000,000 fund, representing its entire capital stock then paid in, being all of its assets not theretofore pledged by it under its conveyance of July 15, 1899, and the Land Title & Trust Company accepted the
. The. Aspha.lt Company of America furthermore agreed in said tripartite agreement to pay $300,000 annually to the trustee, as a sinking fund for said collateral gold certificates, instead of a sum not less than. $25,000 a year, and not to exceed $100,000 a year, as required by said instrument of pledge or mortgage of July 15, 1899.
. Shortly after the proposal of September 13, 1900, to wit, on or about November I, 1900, before the execution of the tripartite agreement, the appellant filed a bill of complaint in the Court of Chancery of the státe of New Jersey, seeking to enjoin the carrying out of said próposal, and made a motion for a temporary injunction. The court, after hearing, denied him the relief asked for. From this decree, no appeal was taken.
On or' about January 1, 1901, the said Asphalt Company of America paid to the said trustee under the tripartite agreement for sinking fund purposes; $300,000.
On the 1st day of April, 1901, by the terms of the agreement dated ■July 15; 1899, the Asphalt Company of America became bound to pay to the Land Title & Trust Company, for the benefit of the holders of -the said collateral gold certificates, the sum of $745,768.86, as a semi•pmiual installment of interest, and in case of default by the said Asphalt .Company of America, by virtue of said agreement of December 31, ■1900, the National Asphalt Company became bound to pay to the said .The Land Title & Trust Company, trustee as aforesaid, for the benefit of the holders,of said collateral gold certificates, the said amount of $745,768.86. Neither the said Asphalt Company of America nor the :said National Asphalt Company made payment to the said trustee on account of this obligation, and accordingly the said trustee, on the said 1st day of April,. 1901, appropriated from the fund of $6,000,000 deposited with it under and pursuant to the said last-mentioned agreement, the sum of $745,768.86, and applied the same to meet the semiannual payments then due on said collateral gold certificates. It is alleged that $560,000, on account of this payment due April 1, 1901, was -afterwards paid by the Asphalt Company of America to the Land Title & Trust Company, leaving unreimbursed the sum of $185,768.86, taken out of the $6,000,000 guaranty fund, which remains unpaid.
On October 1, 1901, the Asphalt Company of America, by the terms of said .mortgage agreement of July 15, 1899, became bound to pay to the said The Land Title & Trust Company, for the benefit of the holders of the collateral gold certificates, the sum of $745,768.86, but default was made in said payment, and the said National Asphalt Company, which thereupon became bound to pay the same upon its guaranty, also defaulted, -and no part of the same has since been •paid by either the Asphalt Company of America or by the National Asphalt. Company.' Accordingly, -the Land Title &. Trust . Company,
December 28, 1901, the Land Title & Trust Company, being a corporation organized under the laws, of the state of Pennsylvania, filed its bill of complaint in the Circuit Court of the United States for the District of New Jersey, against the Asphalt Company of America, as a corporation organized under the laws of the said state of New Jersey.
After asserting the organization of the Asphalt Company of America, its issue of stock and the creation of the trust in the Land Title & Trust Company, for the purpose of securing the payment of the principal and interest of the collateral gold certificates, as herein-before stated, and the organization of the National Asphalt Company, and its acquirement under its proposal of 596,252 shares of the Asphalt Company of America, out of a total issue of 600,000 shares, and the provisions of the tripartite agreement above referred to, alleges the defaults of the said Asphalt Company .of America as above stated, and that in consequence thereof, it was subject to the following liabilities due or shortly to mature, for which it is directly liable:
Due to said complainant for the replacement of money withdrawn from the §0,000,000 guaranty fund, on April 1, 1901, under and pursuant to the sixth clause of the agreement dated December 83, 1900, without computation of interest...........§ 185,768 86
•Due to said complainant, as trustee, to replace money withdrawn from the §6,000,000 guaranty fund, on October 1, 1901, under and pursuant to the sixth clause of the agreement of December 31, 1900, without computation of interest................. 745,768 86
Due to said complainant, as trustee, on account of the sinking-fund payment upon the Collateral Gold Certificates of the Asphalt Company of America, maturing January 1, 1902, as provided in clauses 4 and 7 of the agreement dated December 81, 1900 ................................................. 300,000 00
Total .................................................'§1,231,537 72
In addition to the above, the bill avers that, by reason of the agreements and collateral gold certificates above mentioned, the Asphalt Company of America is subject to future and contingent liabilities of large amount, the extent of which cannot be precisely estimated. It is also averred that the Asphalt Company of America had other liabilities outstanding, consisting of hills payable and due to, companies in which the said Asphalt Company of America is interested as stockholder, and also accounts payable to said companies, the aggregate of which exceeds $650,000.
The insolvency of the said Asphalt Company of America is- aver-; red, and that it is without funds "to meet its obligations as afore
(1) That the said Asphalt Company of America may be decreed to be insolvent, and that a writ of injunction may issue out of and under the seal of the court, restraining the said coi'poration, its officers and agents, from exercising any of its privileges or fraxichises, or froxxi collecting or receiving any debts, or from paying out or disposing of any of its funds, property, or assets, as prohibited by the said New Jersey statute.
(2) That the court appoint a receiver or receivers of said corporation, in behalf of its creditors and stockholders, according to the form of the statute of New Jersey in such case made axxd provided, with full power and authority to demaxid, sue for, collect, receive, axxd take into possession all the goods, chattels, rights and credits and property of every description of tixe said corporation, with all' the incidental powers ordinarily vested in receivers in like cases, axid with full power and .authority to exexxise all right of ownership in 1‘espect to the shares of stock owned by and registered in the name of said cox'poration, and to collect ánd receive the dividends, income and profits therefrom, and to apply the same in accordance with the orders and decrees of the court.
“(3) That the rights of complainant and all other creditors of the said Asphalt Company of America may be ascertained, and that the court fully administer the fund in which complainant is interested, being the entire assets and income of said corporation, and for that purpose, marshal all 'its assets and ascertain the several axxd respective liens and priorities existing on each and every part thereof, and decree and- enforce the rights, liens and equities of all the creditors of said Asphalt Company of America, as the same may be finally ascertained by them, upon interventions or applications of every such creditor or lienor.” Axxd further, for such other relief as tlxe nature of the case may require, and as may be agreeable to equity. •
Defendant further joined in a prayer that a decree of insolvency be entered, and that a receiver be appointed by the court to take charge of its property and assets for the benefit of its creditors and stockholders. On the said 28th day of December, 1901, the court below, on the reading of the bill of complaint and affidavits in support of the same, and the answer of the defendant, duly filed, and the hearing of complainant’s motion for an injunction and the appointment of receivers, made its interlocutory decree that, being satisfied with the sufficiency of the application of complainant, and of the truth of the allegations contained in said bill of complaint, a writ of injunction forthwith issue out of and under the seal of the court, restraining the said corporation, its officers, directors, agents or employés, from exercising any of its privileges or franchises, or from doing any of the things forbidden by the New Jersey statute above referred to, to be done- Also that receivers be appointed of all the property, real, personal and mixed, of the defendant, the Asphalt Company of America, wheresoever situated, and all its franchises, rights, privileges and effects, more particularly set forth in the decree, and with the powers and authorities usually conferred upon receivers in such cases, for the proper protection of the property and trusts vested in them. After the receivers had been appointed, as aforesaid, about January 27, 1902, the appellant, Harry C. Spinks, applied by petition for leave to- intervene in the said suit, as recited by Jiim in one of the petitions now before this court. The court denied this application, and no appeal was taken therefrom. 114 Ted. 484.
On December 8, 1902, the Land Title & Trust Company filed a bill, or petition in the nature of a bill, to foreclose the mortgage or pledge made to it by the Asphalt Company of America, to secure the collateral gold certificates, exceeding $29,000,000 in amount. This bill set up the defaults in the payment of obligations of the defendant company to the amount of $2,723,075.44, stating provisions in the agreements of July 15, 1899, and December 31, 1900, authorizing the resort by the trustee to the court for relief, demands upon the defaulted companies and the receivers thereof for payment of the defendant’s debt, the continuance of such default, subsequent to such demands, and requests from holders of the collateral gold certificates,
Prior to the filing of appellant’s petition for intervention, to wit, Feb- • ruary 16, 1903, an order was made by the court below, consolidating the four suits in the caption, in all of which the Land Title & Trust Company was asserting a prior lien on certain assets. On February ■ 23> I9°3) an order was made, referring the claim of the Land Title & Trust Company, in the consolidated suit, to a special master, to ascertain , ahd report the' amount of principal and interest of the collateral gold certificates of the Asphalt Company of America outstanding, and also ■ the collateral gold certificates of the National Asphalt Company, and . the amounts -due and to become due thereon for semiannual payments, and to report and ascertain what securities are held by the Land Title & Trust Company and the Equitable Trust Company for the security . of said certificates, in what manner they are pledged, and how they 1 could- be sold to the best advantage. On the coming in of the reports . of the-special master, first and supplemental, the court below, on April' .3d,-entered its decree of sale in accordance with the recommendations of; s^id reports, directing publication of notice of sale, and that the receiver should publish notice to creditors of the Asphalt Company of
On July 20, 1903, Spinks filed a petition to intervene in the consoli-, dated cause, and set aside the decree of sale and decree confirming sale, which petition was heard, and the petition to intervene in the consolidated cause denied by the court below. From the order denying the. petition to intervene, an appeal has been taken here, and will be rer ferred to as the third of the appeals now before this court.
With this general statement of the character of the litigation, involved in the consolidated suits, we come to consider the merits of those appeals and the questions of law involved therein. The first and third appeals may be considered together, the one relating to the petition to intervene in the so-called foreclosure suit, and the other to the petition to intervene in the consolidated cause preferred to the court below after the sale under the decree, and seeking to set aside the decree of sale and the decree confirming the sale.
In the first appeal, the appellant represents himself as having filed his petition to intervene in the foreclosure suit in the court below, as the holder of 1,000 shares of the 'capital stock' of the Asphalt Company of America, out of a total of 600,000 shares. The so-called foreclosure bill was filed November 18, 1902, by the Land Title & Trust Company, as trustee; of the securities conveyed to it by the Asphalt Company of America, for the benefit of the holders of the collateral gold certificates issued by it as above described. The allegations of the bill heretofore briefly outlined, including the allegation of the default to the amount of $2,723,075.44, were necessarily considered and investigated by the receivers, as appears by their answer filed February 14, 1903. That these allegations were carefully considered and investigated, is emphasized by the statement of the appellant in his petition for intervention, that he had applied to the sáid receivers before the filing of the answer, to wit, on January 2, 1903, to include in their answers certain defenses set out by him, and that the receivers, after presumably considering the same, had declined to adopt the answer proposed by appellant, and that thereafter, fo wit, on January 14, 1903, the said ap
In the view taken by this court of these appeals, it will be necessary to consider only briefly the character of these proposed defenses. They are six in number, and are set out with much elaboration in the petition of intervention in the court below.
The first of these defenses is, that the allegations of the bill of complaint, as to the defaults of the American Company, are not truly pleaded, in that, of the five defaults alleged, only two were defaults as to valid obligations of the Asphalt Company of America, and that there was, therefore, due only the sum of $1,491,537.72, instead of $2,733,-077.54. The three defaults' which are impeached, arise out of the failure of the company to meet the obligations imposed upon it by the tripartite agreement of December 31, 1900. Without passing upon the question as to these being defaults of a character to justify the proceeding of the trustee, it is sufficient to note that two of the defaults of a large amount are admitted to be true defaults in relation to the pledge or mortgage, and justify the trustee in its proceeding for foreclosure. '
As a second defense, the appellant alleges that the trustee might have applied the balance of the $6,000,000 guaranty fund that it had received under the tripartite agreement of December 31, 1900, to the settlement of the defaults, on account of which the so-called bill of foreclosure was filed. But, according to the appellant’s own statement, it had already twice withdrawn the sum of $745,768.86 from said fund to pay installments of interest on the collateral gold certificates, due respectively April 1, 1901, and October 1, 1901. Under the terms of the tripartite agreement, the authority given to the trustee to resort to this fund for payment, was coupled with the obligation of the Asphalt Company of America to replace, within 12 months, any sums thus withdrawn from said fund. (The failures on the part of the Asphalt Company of America to replace these sums are the defaults-alleged in the so-called bill of foreclosure, to which appellant takes exception, as above stated.) But clearly the trustee was not required, either by the obligation of its trust or the requirements of good business management, to go on drawing from this fund, when both the Asphalt Company of America and the National
The third defense which the appellant sought to interpose by his petition of intervention, was that the bill of complaint was prematurely filed, on the ground that the mortgage or instrument of pledge provided that, after a default made and continued for thirty days after demand, the trustee, upon the request of a majority of certificate holders, shall cause the pledged securities to be transferred into its name, and that if, within six months thereafter, the company has not made good the default, and a majority of the certificate holders shall demand that the pledged securities be sold, the principal shall be deemed due; and if within three months thereafter, the company has not paid the principal and interest due, the trustee shall sell the securities and apply the proceeds to the payment of the debt. The appellant alleges in his proposed defense, that the bill of foreclosure does- not allege that any of these steps have been taken, or that ten months have expired since the occurrence of the alleged defaults. These particular provisions of the original mortgage are set out at great length therein, and provide for the eventual sale by the trustee, of liis own motion, of the pledged securities after all these steps have been taken, and the prescribed periods of time mentioned have expired: The directions as to the making of the sale and the notices to be given at the different stages of the procedure mentioned, are most minute. After they have been completely described, there follows in another paragraph this provision:
“Tile trustee may, in the event of default made and continued, as provided in this section of the agreement, at the request in writing of the owners and holders of a- majority in amount of the certificates at: the time outstanding, institute such legal proceedings as may he advised hy counsel to enforce the obligations of this agreement undertaken hy the company.”
The court below may well have considered this provision as an alternative power in the trustee to proceed, when the default on the part of the company in payment of an installment of interest had continued for 30 days, in lieu of the power of sale vested in the trustee when and after so many different requirements had been complied with. Such default, for 30 days is the only default on the part of the company mentioned in the preceding provisions, and the trustee would seem to have been authorized, at the request in writing of the owners and holders of majority in amount of the certificates outstanding, to institute such legal proceedings as might be advised by
The fourth defense sought to be interposed by the appellant, was that the trustee had no right to ask for a sale of all the assets pledged With it, nor for the payment of the principal of the bonds in addition •to the interest. The receivers in this case represented the interests qf all the stockholders, after the payment of the debts, and the conclusion reached by them not to interpose such defense, apart from fraud, cannot be questioned by each individual stockholder, and there is nothing to impeach the discretion of the court below in having ordered a sale of all the assets at the instance of the complainant trustee, who -represented the creditors of the insolvent company.
• The fifth defense rests upon general and broad allegations of a conspiracy to wreck the Asphalt Company of America, participated in •by the trustee and a majority of the certificate holders, at whose request the trustee filed the bill.- This charge of conspiracy is also the burden of the petition for intervention filed in the consolidated cause, after the decree of sale and the decree confirming the sale, asking the court to set aside all that had been done and investigate the said charges. This latter petition was filed by the appellant, both as stockholder and certificate holder. No specific and definite charges of fraud and conspiracy are averred, and the Band Title & Trust Company, as trustee, are at best only sought to be affected by a suspicion of com.plicity in a so-called conspiracy arising out of the fact that about one year after the formation of the Asphalt Company of America, only $10 a share having been paid upon its stock, a large majority of .its stockholders, pursuant to a plan theretofore outlined to the National Asphalt Company, transferred to the National Asphalt Company their stock in the Asphalt Company of America, receiving in exchange for each share of the par value of $50 thus transferred, $10 .in 5 per cent, collateral gold certificates of the National Asphalt Company, $7 in full-paid and nonassessable'National Asphalt Company’s preferred stock, and $10 in full-paid and nonassessable Nationál .Asphalt Company’s common stock. The National Asphalt Company’s gold certificates were secured by a deposit with the Equitable Trust Company of Philadelphia, as trustee of all the shares of stock of the Asphalt Company of America purchased under this plan.
; The inference is asked to be drawn from this transaction (the charge 'not' being directly made) that this transfer by nearly all of the stockholders of the Asphalt Company of America, of their stock to the National Asphalt Company, was in pursuance of a scheme or conspiracy to : relieve said stockholders from liability to be called upon for the unpaid,installments, due,.on., their, stpck;, it. .being alleged. that ...the
It is not to be overlooked that the so-called foreclosure suit was in reality a proceeding by the trustee to have the court, which already,, under the original suit had taken possession, through its receivers, of the property and assets of the Asphalt Company of America and the National Asphalt Company, apply the same in discharge of the’ lien held by the said trustee. And the subsequent action of the court,"its reference to a master and its order of sale and confirmation thereof, were all steps in the due administration by it of the fund in its possession. All that ought to have been done by the corporation itself, the court can, in the exercise of a sound discre1' tion, require to be done through the instrumentality of its receivers. Upon the proper exercise of that discretion depends the large and widespread interests of stockholders, creditors, and the public, and the, court may well have refused to have the progress of its administration interfered with by would-be interveners, on grounds that are technical rather than meritorious, which, while destructive of the main object had in view, and disastrous to the larger interests involved, promise no real benefit or advantage to the intervener. As we have' said, the court having possession and plenary control of the funds and assets of the insolvent corporation, may order its receivers, under proper conditions, to proceed for the enforcement of a stockholder’s liability, but this power will only be exercised when, in the discretion of the court, it is likely to produce results .beneficial to all the interests, involved. It is well to recall that the appellant filed a bill in. chancery, in New Jersey, in the fall of* “1900, at the time that the transfers of stock referred to by him-were-made, and attempted- to-
“The bill is based upon a theory of the nature of the stockholders’ liability under our statute which is not only new, but which, it seems to me, is at variance with the statute and decisions on it. It is apparently based on the idea that from the time of the creation of his debt every creditor has an existing and continuing right to the security of the calls for unpaid subscriptions for the payment of his debt and a right to hold this security of the calls as it existed when his debt was contracted, unimpaired during the continuance of his debt by a transfer of stock to an irresponsible person. The nature of the right shown by the statute itself and decisions under it is, on the contrary, only a right upon an administration of all the assets of the company for the payment of debts to have the unpaid shares then paid up so far as necessary to pay the debts then existing. * * * This right to make calls upon the unpaid subscriptions for the purpose of payment of debts is not a continuing security which the company are bound to keep unimpaired by control over the personnel of membership of the corporation, but is a right given only as supplemental of the result of the final winding up of the corporate affairs, and, in connection therewith, against persons who, at the time of the winding up, are liable as stockholders under the statute.”
But we are not concerned here to deterniine the liability of stockholders who have transferred their stock. The agreement between the Asphalt Company of America and the Land Title & Trust Company, as trustee, by which certain stocks and property were pledged for the security of gold certificates, to be issued by said trustee, and which the court, in the litigation below is asked to foreclose, was made in July, 1899, and the transfer by the stockholders of their stock to the National Asphalt Company, took place in September, 1900. It was the right and duty of the trustee under the so-called mortgage or pledge to foreclose the same, when default had taken place, whether the company be solvent or insolvent, and it is not material to the trustee what remedies the company may have to collect money with which to pay the mortgage debt. No conduct of stockholders, however reprehensible, could impair the remedy of the holders of certificates and of their trustee to enforce their security.
As we have already said, the vague and indefinite charge of a conspiracy, in which the trustee under the so-called mortgage was implicated, was not sufficiently specific to justify the court in arresting further proceedings in the important litigation before it, or in setting aside the order of sale, and sale already made, in order to investigate the said charge. Moreover, such a charge is not the subject for a collateral proceeding, and should be investigated in an independent suit instituted for that purpose.
The third petition of intervention charges .that, in furtherance of said conspiracy, a certain number of stockholders, called in said petition “reorganizers,” had caused a committee to be formed,N at whose instance and by whose advice the bill for a receivership was filed and the subsequent proceedings of foreclosure and sale were taken. This committee, who are named in the petition, consisted of five well-known citizens and financiers, against whom no individual or specific charge of fraud is .made. They are alleged, however, .to
■ The contention of the appellant, that the direction to the receiver to receive proof of all debts and obligations of the Asphalt Company of America, entitled" him to present his claim as a holder of collateral gold certificates, cannot be supported. The receiver allowed and reported upon no claims of holders of collateral gold certificates, and it does not appear that any application, other than that' of the appellant, was made to-him for that purpose. No good reason was shown why appellant’s case should be segregated from that, of 2,000 other holders, or that his security, as such holder, was in any way affected to his detriment by the decision of the receivers. The appellant became the owner of his gold certificates, subject to any limitations imposed by the form in which they were made; that is to say, the obligations entered into by the Asphalt Company of America, in and by said agreement of pledge, or by the said trustee. The company covenants, in said agreement to pay to the trustee the moneys necessary to pay interest .on'the certificates as they fall due, and also certain sinking- fund amounts, and it -is the trustee only who has, by the form of such certificates, direct obligation to the -certificate- holder, and in the
Section 78 of the corporation act (Laws 1896, p. 302, c. 185) referred to provides that “every such insolvent corporation, or any person aggrieved by the proceedings or determination of such receiver in the discharge of his duty, may appeal to the Court of Chancery, which court shall, in a summary way, hear and determine the matter complained of and make such order touching the same as shall be equitable and just.” The appellant appealed to the court below from the decision of the receiver denying his claim to prove his individual certificate, and the appeal being heard by the court, it was, as already stated, dismissed. The appeal from this decision of the court is the second appeal before us. We see no grounds on which to criticise the action taken by the court below in the matter of this appeal. There was no hardship in denying appellant a status in the consolidated suit, which was neither claimed by nor accorded to any of the other certificate holders, and no substantial right of appellant was injured by said decision.
In the third appeal, an important question is raised by the denial of the appellant, that the Circuit Court of the United States had jurisdiction to entertain the suit of the trustee for the appointment of receivers of the Asphalt Company of America, on the ground of insolvency, either under the statute of the state of New Jersey, already referred to, or under the general equitable powers of courts of equity, as administered in England and this country. Both corporations, the Asphalt Company of America and the National Asphalt Company, were incorporated under the provisions of the general corporation act of the state of New Jersey. The sixt}r-fourth and sixty-fifth sections (page 298) of the s'aid act, as contained in the Revision of 1896, are as follows:
“G4. Whenever any corporation shall become Insolvent or shall suspend its ordinary business for want of funds to carry on the same, neither the directors nor any officer or agent of the corporation shall sell, convey, assign, or transfer any of its estate, effects, choses in action, goods, chattels, rights or credits, lands or tenements; nor shall they or either of them make any such sale, conveyance, assignment or transfer in contemplation of insolvency, and every such sale, conveyance, assignment or transfer shall he utterly null and void as against creditors: provided, that a bona fide purchase for a valuable consideration, before the corporation shall have actually suspended its ordinary business, by any person without notice of such insolvency or of the sale being made in contemplation of insolvency, shall not be invalidated or impeached.
“G5. Whenever any corporation shall become insolvent or shall suspend its ordinary business for want of funds to carry on the same, any creditor or stockholder may by petition or hill of complaint setting forth’ the facts and circumstances of the case, apply to the Court of Chancery for a writ of injunction and the appointment of a receiver or receivers or trustees, and the court being satisfied by affidavit or otherwise of the sufficiency of said application and of the truth of the allegations contained in the petition or bill, and upon such notice, if any, as the court by order may direct, may proceed in a summary way to hear the affidavits, proofs and allegations which may be offered on behalf of the parties, and if upon such inquiry it shall appear to -the court that the-corporation has become insolvent and is not about to*18 resume its business in a short time thereafter with safety to "the public and .advantage to the stockholders, it may issue an injunction to restrain the corporation and its officers and agents from exercising any of its privileges or franchises and from collecting or receiving any debts, or paying out, selling, assigning or transferring any of its estate, moneys, funds, lands, tenements or effects, except to a receiver appointed by the court, until the court shall otherwise order.”
It is true that, independent of statutory authority, the general equitable jurisdiction of the United States courts does not extend so far as to entertain a suit by a creditor against a corporation, seeking the appointment of a receiver of its business and property and an injunction against the exercise of its corporate franchises, solely on the ground of insolvency. It is, however, well settled by adjudications of the Supreme Court and subordinate federal courts, that if a state legislature, by a valid law, create a right essentially equitable in its nature, prescribing a remedy for its enforcement substantially consistent with the ordinary modes of proceeding on the chancery side of the federal courts, no reason exists why it should not be pursued in a federal court of equity in the same form as it is in the state courts. Clark v. Smith, 13 Pet. 195" court="SCOTUS" date_filed="1839-02-28" href="https://app.midpage.ai/document/clark-v-smith-86088?utm_source=webapp" opinion_id="86088">13 Pet. 195, 203, 10 L. Ed. 123.
In Gormley v. Clark, 134 U.S. 338" court="SCOTUS" date_filed="1890-03-17" href="https://app.midpage.ai/document/gormley-v-clark-92733?utm_source=webapp" opinion_id="92733">134 U. S. 338, 348, 10 Sup. Ct. 554, 557, 33 L. Ed. 909" court="SCOTUS" date_filed="1890-03-17" href="https://app.midpage.ai/document/gormley-v-clark-92733?utm_source=webapp" opinion_id="92733">33 L. Ed. 909, the Supreme Court say:
“An enlargement of equitable rights by state statute may be administered by the Circuit Courts of the United States as well as by the courts of the state; and when the case is one of a remedial proceeding, essentially of an equitable character, there can be no objection to the exercise of the jurisdiction.”
Under the Constitution and judiciary act, “Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, * * * in which there shall be a controversy between citizens of different states.” The tests of jurisdiction, exclusive of the amount in dispute, are, therefore, that there shall be (1) a “case” or “suit” of a civil nature, as those terms have been defined by the Supreme Court of the United States, (2) which is cognizable in a court of the state wherein the federal Circuit Court has territorial jurisdiction, and (3) that such suit shall involve a controversy between citizens of different states. When, such conditions exist, such Circuit Court has authority to fully adjudicate'the legal rights of the parties to such controversy, as they exist under the laws of the state, as fully as they could be adjudicated in the appropriate state tribunal of concurrent jurisdiction. In so doing, the federal Circuit Court is necessarily dealing with and adjudicating rights that exist under and by virtue of the laws of the state in which such Circuit Court has its territorial jurisdiction. The Constitution and laws of the United States provide an additional forum to that of the state, for the adjudication of suits involving controversies between citizens of different states, not a different law. Any party who has a right to come into the Circuit Court of the United States, finds a court clothed with plenary power to do justice according to law, as existing in .the state wherein such Circuit Court is held.
But while the Circuit Courts are thus clothed with jurisdiction to administer the laws of the state in all suits involving controversies between citizens of different states, the procedure in such courts will be that pertaining to suits at common law or in equity, as such suits were distinguished at the time of the adoption of the Constitution, and whether the relief sought, or the right asserted, fall into the one category or the other, depends upon the distinction as existing at that time. Jf the right to be asserted or the wrong to be redressed present a case essentially equitable in its nature, it will be cognizable on the equity side of the United States Circuit Court having jurisdiction of the parties, if there be no plain, adequate and complete remedy at law as existing at the time referred to. While state legislation cannot directly enlarge or contract the jurisdiction of the federal courts, it can create rights that are justiceable in such courts, which, without such legislation, were not cognizable therein. It has been long well settled, that where a state law creates a lien, essentially of a maritime nature, it can be enforced in the federal court of admiralty having jurisdiction within such state, though such lien be not recognized under the general admiralty law. But the procedure for enforcing such lien will be that obtaining in courts of admiralty, not that provided by the state law. And the same result attaches to the provisions of the New Jersey corporation act, in the sections above referred to. The situation to which these provisions refer, presents a case essentially equitable in its nature and capable of being prosecuted and administered only by the procedure ordinarily obtaining in courts of equity. Hollins v. Brierfield Coal & Iron Co., 150 U.S. 371" court="SCOTUS" date_filed="1893-11-20" href="https://app.midpage.ai/document/hollins-v-brierfield-coal--iron-co-93711?utm_source=webapp" opinion_id="93711">150 U. S. 371, 14 Sup. Ct. 127, 37 L. Ed. 1113" court="SCOTUS" date_filed="1893-11-20" href="https://app.midpage.ai/document/hollins-v-brierfield-coal--iron-co-93711?utm_source=webapp" opinion_id="93711">37 L. Ed. 1113. A suit under these sections of the act is, therefore/ cognizable in the United States Circuit Court having jurisdiction of the parties on its equity side. The right so created wiil be enforced by the remedies prescribed by the act, so far as the same are consistent witli and not violative of the general equitable rules and procedure, as administered in federal courts of equity. But sucli courts are not obliged to depart from their own rules and conform to the procedure prescribed by the statute, if such procedure is inconsistent with or unknown to the equitable practice obtaining in federal courts. Such courts may adapt their own equitable procedure to the adjudication of the right and the attainment of the relief established and prescribed by the state statute, when once on other grounds they
“It would seem that no argument is necessary to establish the proposition that when substantial rights, resting upon a statute, which is clearly within the legislative power, come in conflict with mere forms and modes of procedure in the courts, the latter must give way, and adapt themselves to the forms necessary to give effect to such rights. The flexibility of chancery methods, by which it moulds its decrees so as to give appropriate relief in all cases within its jurisdiction, enables it to do this without violence to principle. If one or the other must give way, good sense unhesitatingly requires that justice and positive rights, founded both on valid statutes and valid contracts, should not be sacrificed to mere questions of mode and form.”
The pursuing party in the receivership suit (the Land Title & Trust Company) was not a simple contract creditor, but was the pledgee or mortgagee of all, or nearly all, of the assets of the defendant company. As such lienholding creditor, it exercised the right and power conferred by the New Jersey statute to have an injunction, and a receiver appointed, by merely showing the insolvency of the debtor and defendant corporation and-that it was not about to resume its business in a short tim'e thereafter, with safety to the public and advantage to the stockholders. It is not necessary, therefore, to discuss or decide the question as to the right of a simple contract credit- or to proceed in a federal court of equity under the authority conferred by the state statute on the state court of chancery, or the question as to the right of the complainant in the receivership suit, as a lien creditor, to appeal by such a bill to the general equity jurisdiction of the Circuit Court.
As the court below had jurisdiction of the case on the grounds we have indicated, and as it now appears that the interlocutory decrees appealed from are right in themselves, we do not feel called upon to question the regularity of the proceedings anterior thereto; but we think that in the further progress of the case, the method of procedure should be that of the federal courts, with such modification only as may be made “•without violence to principle,” and as may be found to be requisite to adapt them to the efficient adjudication of the right created by the New Jersey statute.
This being so, the question remains, whether the orders or decrees of the court below, which were the subject-matters of the three appeals before us, were appealable. The act of Congress of March 3, 1891, c. 517, in section 6, cl. 1, 26 Stat. 828 [U. S. Comp. St. 1901, p. 549], provides that “the Circuit Courts of Appeal established by this act shall exercise appellate jurisdiction to review, by appeal or by writ of error, final decisions in the District Court and the existing Circuit Courts, in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law.” Neither of the appeals before us are from “final decisions” in the court below in the case before it, as those words are usually understood. An appeal from such a final decision can only be taken by an original' party to the suit, or by one who has been made so by express order
“When such an action is taken, that is to say, when leave to intervene in an equity case is asked and refused, the rule, so far as we are aware, is well settled that the order thus made denying leave to Intervene is not regarded as a final determination of the merits of the claim on which the intervention is based, but leaves the petitioner at full liberty to' assert his rights in any other appropriate form of proceeding. Such an order not only lacks the finality which is necessary to support an appeal, but it is usually said of it that it cannot he reviewed, because it merely involves an exercise of tbe discretionary powers of the trial court. * * * It is doubtless true that cases may arise where the denial of a third party to intervene therein would, be a practical denial of certain relief to which the intervenor is fairly entitled, and which he can only obtain by an intervention. Cases of this sort are those where there is a fund in court undergoing administration to which a third party asserts some right which will be lost in the event that he is not allowed to intervene before the fund is dissipated. In such cases an order denying leave to intervene is not discretionary with the chancellor, and will generally furnish the basis for an appeal, since it finally disposes of the intervenor’s claim by denying him all right to relief.”
The general rule, however, is, as stated by the Circuit Court of Appeals, in Hamlin v. Toledo, St. L. & K. C. R. R. Co., 78 Fed. 665, 24 C. C. A. 272, 36 L. R. A. 826:
“The allowance or denial of the application of a stranger to he admitted as. a party defendant to a pending suit in equity, rests in the sound discretion of the chancellor. The denial of such an application is not such a final decree as is the subject of appeal. * * * Such an application Is A mere motion in the case, made by one not a party, and is not of itself an independent suit in equity-appealable here.’E . ........■ . ; . -. ', •. ;.
The application to intervene, in both the first and third appeals, was broadly upon the ground that the party by whom the interests of the intervener should be represented, (in the one case the Eand Title & Trust Company, trustee, and in the other the receivers) was not representing such interests properly. No individual or separate interest of the petitioner, which could not otherwise be adjudicated at all, and would therefore be lost if intervention were denied, was presented in the court below in either of the petitions which are the subjects of the first and third appeals. If the trustee and the receivers act honestly and in good faith, the rights of the appellant are protected. The trustee has important interests committed to him by his cestuis que trustent in the litigation before the court, and the court was right, both as to the trustee and the receivers, in exercising its discretion to protect them from interference, in the carrying on of the litigation and the administration of the funds in hand, as attempted by appellant’s petitions for intervention. If the trustee had acted in bad faith, or fraudulently, it was open to the appellant to proceed by original bill, and if the receivers have been guilty of malfeasance in office, the proper remedy is an application to the court below by the appellant or other party ,in interest, for their removal and the substitution of others.
The second appeal before us, as already fully stated, is from the decision of the court below, refusing to entertain an appeal from the decision of the receivers, not to allow the appellant to prove his claim as a certificate holder, having already had proof made by the trustee of its claim representing the whole issue of collateral gold certificates, including, of course, that of the appellant. It is to be borne in mind that the collateral gold certificates issued under the agreement of July 15, 1899, do not certify debts and obligations of the Asphalt Company of America direct to the certificate holder, but are a declaration by the Land Title & Trust Company, to whom the said asphalt company has transferred its assets and securities, that it holds the same in trust to pay to the holder of the certificates his proportionate share of the income collected on such securities, and for the ultimate collection and payment to him of the principal amount named therein, so that technically specific holders of such certificates cannot claim as creditors of the Asphalt Company of America, excepting through their trustee. It is not easy to perceive the exact object of the appellant in this matter, unless it be in some way to compel all certificate holders to make proof of their individual certificates, and require the receivers to discriminate against such holders of the same as appellant alleges were guilty of some complicity in an alleged conspiracy or other wrongdoing, as set forth in his other appeals, and thus accomplish an intervention indirectly, which had been denied him by the court upon his petitions. As we have before said, no individual right of the plaintiff is finally disposed of and lost by the refusal of the court below to entertain his appeal. As said by counsel for the receiver, the court chose to direct the receiver to receive proofs of certain claims, it having determined the status of all claimants in the appellant’s class, after a reference to a master, and having fixed their
For the reasons stated, we are of opinion that the three appeals must be dismissed.