74 N.J. Eq. 686 | New York Court of Chancery | 1908
In July, 1908, this court appointed receivers of the property and assets of the United; Box Board and Paper Company, a New Jersey corporation, which is now in process of being wound up under the statute. The company was engaged in the
If there were no specific and fixed liens and encumbrances upon the property of the company there could be no question but that the court could authorize the receivers to borrow moneys for proper purposes and make the securities therefor first liens upon the property in the receivers’ custody. The difficulty arises in this class of cases in the desire or attempt to make this sort of securities a lien prior to existing encumbrances on the specific property.
There is, however, in principle and on authority, a wide dis-f tinction between the power of the court to authorize the displacement of subsisting mortgages and liens in the case of public corporations and its power in the case of mere private enterprises! which have taken the corporate form. The general power to authorize the issue, of receivers’ certificates of indebtedness for the purpose of continuing a business which exists in the case of a _ púlilic ^corporation does not exist in the case of a private corpo- \ ration. When a receiver is appointed of a private corporation^ 'under our statute the court may authorize him to continue the! business temporarily, but with the purpose of winding up, pro- ' vided the receiver has in his possession sufficient assets to enable him to go on; but if he should find it necessary to borrow money with which to continue the business, the rule undoubtedly is that he shall not be authorized to issue receivers’ certificates to raise money therefor which shall displace the lien of a subsisting en- / cumbrance. The reason for this is very obvious. It would be a gross violation of that claus'e of the federal constitution wliich .prohibits the states from passing laws violative of the obligations
Other cases in the state courts are: Osborne v. Bigstone Company, 96 Va. 58; 30 S. E. Rep. 446; International Trust Co. v. United Coal Co. (Colo.), 60 Pac. 621; Merriam v. Victory Mining Co., 37 Oreg. 321; 60 Pac. 997.
Tn the ease of Fidelity Insurance Trust and Safe Deposit Co. v. Roanoke Iron Co., 68 Fed. Rep. 623, the complainant was foreclosing a mortgage on the property of the defendant, a private corporation engaged in the production of iron, a receiver was appointed who petitioned for leave to issue receivers’ certificates and to borrow money thereon for the purpose of carrying on the business of the company. The prayer of the petition was denied upon the principle that it was beyond the authority of the court to authorize the receiver of a private corporation to issue certificates which should displace the lien of a subsisting mortgage for any such purpose. In the case of Hanna v. State Trust Co., 70 Fed. Rep. 2, the court appointed a receiver for a private corporation engaged in business of irrigation and colonizing arid lands. In a suit brought to foreclose a second mortgage, it was held that the court appointing the receiver had no authority to authorize its receiver to issue certificates to raise money to carry on the business of the insolvent corporation and
In International Trust Co. v. Decker, 152 Fed. Rep. 78, the insolvent company, a Maine corporation owning property in Alaska, mortgaged- the same to the complainant, a Massachusetts corporation. Proceedings were taken to foreclose the mortgage, in which proceedings the receiver was authorized to issue certificates on which to borrow money with which to carry on the company’s business, andi they were by their terms made a first lien upon the property of the corporation. It was held by the circuit court of appeals that the mortgage could not be displaced, following Baltimore Building and Loan Association v. Alderson, 90 Fed. Rep. 142, in which the circuit court of appeals said: “In case of private corporations the court cannot authorize the issue of receivers’ certificates for the purpose of improving, adding to or carrying on the business of the company without first having the consent of the creditors whose liens would be affected thereby.”
The English rule will be found in the judgment of Mr. Justice ICekewdch in Securities and Properties Corporation v. The Brighton Alhambra, 62 L. J. Ch. 566; Kerr Rec. 195.
From the cases above cited and from the constant course of J practice in this state the rule may be dedüced that in case of /' private corporations the court may authorize its receiver to borrow money upon the faith and credit of all the property of the corporation and authorize the issuing of securities which shall displace all prior liens and encumbrances, but only for one purpose, viz., the preservation of the property and the expenses of . realizing upon it by a sale. This necessity should be imperative .-And paramount and under no other circumstances can a court ^justify itself in attempting to undermine prior liens,
The rule which forbids the displacement of prior liens by Receivers’ certificates, at all events, in the case of private corporations, is not the reasonable rule. It goes too far. It may' well be
Under no circumstances would the court be justified in authorizing its receiver to borrow money and make the obligation thereof a first lien on tlie property of a private corporation by the displacement of existing liens for the mere purpose of continuing the business in which the company was engaged, unless possibly in a case in which it satisfactorily appeared that the continuation of the business was absolutely essential to the preservation of the property in the receiver’s custody. In the case of a private corporation this necessity is made the criterion.
In addition to the limitations thus set to the power of the court it may be well to add that in every case the power now.,, appealed to is an extraordinary one and is liable to abuse unle's'sexercised with the utmost caution. The court should be satis- ¡ fied by a preponderance of circumstances that no other course could be successfully adopted, and that practical ruin would ensue if the authority were withheld. All the facts should be exhibited which make the necessity apparent; all the. parties ' affected should be notified and a full hearing accorded to all objectors.
I think that the required necessity exists in this case. As to v the payment of the insurance premiums, that may be dismissed'! with a word. It is only common prudence to provide a fund for, that purpose. Porch v. Agnew, supra.
As to the Wabash mill, it appears that, unless the interest on the bonds and the sinking fund so-called shall be met within three months from September 1st, the holders of the underlying' bonds may foreclose their lien. In the latest report of the condition of tlie company this mill is valued at $500,000; it has been carried on the books of the company at a very much higher valuation. It is subject to a mortgage of $188,000, leaving a-substantial equity, which ought to be protected for the benefit
I therefore think that the prayer of the petition should be granted and that the receivers should be permitted to issue certificates to the amount required for the purposes above mentioned, which shall bear interest at a rate not greater than six per cent, per annum, and be disposed of at not less than their par value and be made a lien on all the property of the company in the possession or under the control of the receivers prior to the mortgage held by the Trust Company of America and prior to the claims of the bondholders secured thereby, i>ut subject and subsequent to the underlying mortgage of $188,000 now on the “ Wabash mill. Inasmuch, however, as this court has no juris-; diction to authorize the issue of receivers’ certificates which shall'*' be a lien on the lands in another state (Poole v. Farmers’ Loan and Trust Co., 7 Tex. Civ. App. 334), it will be necessary tS,' apply for and obtain a similar order in each of the jurisdictions-in which property of tbe company lies.
There are some questions of practice which may well be r£?C ferred to here. Counsel will find in many of the cases that' receivers have undertaken to borrow money on receivers’ certificates without the authority of the court. It is, perhaps, unnecessary to say that in this jurisdiction a receiver has no such power by virtue of his office, nor has he any power to issue any form of evidence of indebtedness which shall create a specific lien on the property in his custody as an officer of the court. He may only do so by the formal enabling decree of the court which has jurisdiction over the receiver and over the property. It may~~7 be stated as a general rule that a receiver’s powers are limited by the terms of the order of his appointment or by the statute which authorized it. Runyan v. Farmers’, &c., Bank, 4 N. J. Eq. (3 Gr. Ch.) 480; Verplanck v. Mercantile Insurance Co., 2 Paige 438; Quincy, &c., Railroad v. Humphreys, 145 U. S. 82; Sm