2 Barb. Ch. 362 | New York Court of Chancery | 1847
Although the question of parties was not raised by the demurrer, upon the record, yet, as it was raised ore tenus, upon the argument, it may be necessary to consider it. And there can be no doubt, upon the facts stated in the complainant’s bill, that this is not a case in wliHi it was necessary to make all the shareholders of the association parties to the suit by name; but that the bill is properly filed by one of the shareholders in behalf of himself and all the others who nave a common interest with him in having the effects of the association converted into money, and distributed among the several shareholders according to the provisions of the articles of association. The bill shows that there are at least one hundred and forty persons claiming to be shareholders; and if they were all within the jurisdiction of the court, and known to the complainant, it would be very inconvenient, if not wholly impracticable, to make them all defendants and to bring the suit to a termination during the present generation. For with so many parties before the court, the suit would probably abate, by death or otherwise, as fast as the necessary proceedings could be had to revive, from time to time.
Nor is this one of those cases in which it is necessary for the protection of the rights of any of the parties in interest, that all the shareholders, should be before the court. The defendants have not only the whole legal power and disposition of the property, but the articles of association expressly provide that the conveyances shall be taken to them, without specifying that the lands are held in trust for any persons as cestuis que trust. A decree, therefore, directing a sale of the property, either by the defendants or by a receiver appointed by the court and to whom they may transfer the title to the lands which is now in them, will give a good and valid title to the purchaser. Where that is the case, if the cestuis que trust are numerous, or if some of them are unknown, it is not necessary to make them
The defendants are also wrong in supposing that ’this is not a proper case to -file a bill to compel "the execution-of the trust; even if the trustees have" acted in good faith-in delaying the sale of the-lands, and the conversion of the securities into money, for more than five years- after the time specified- in -the’articles of "association for that purpose. Although it -may not be for the interest of all the Shareholders, or even of a majority of them, to have the property and effects of the association converted -into money-and distributed, at the time specified in the articles of' association, yét" if some of the shareholders’wish it- done for their 'benefit, they haVe a right ‘to insist" that" the written- contract" shall bé carried into effect according to its spirit and intent, without any unreasonable delay. And if -the-lands cannot^ be disposed of for cash at private sale, the trustees should sell-them at- auction; after giving reasonable notice to the- "shareholders, by public advertisements or otherwise, so that "theymay attend the sale and see that'the-property is not" sold below its cash value. The-samé disposition should be made of the bonds and mortgages, and othersecurities,-if they cannot be collected, or sold at private sale, within a reasonable time. And such was un doubtedly the intention" of the associates originally. For the 24th ■article provides that atthe expira tionof the six ■ years the-trustees shall cause the securities held by them to be collected, or converted into money. That is,-if they cannot"' be collected without any unreasonable delay," either 'because "they -have hot "become payable or otherwise, they shall be converted into money-by a sale -thereof for- cash. The complainant, therefore,- has the right to insist that the "trustees shall proceed without añy- üñféa'sbhable delay, to close up their" trust. - And if the trustees cririnot-rigíée among themselves as to the time and’ mariner of-"disposing of
There is nothing in the 27th article which is inconsistent with the 24th, or which authorizes a majority of the shareholders to delay the winding up of the affairs of the association, after the expiration of the six years. The article providing for the annual meeting, it is true, gives to the shareholders the power to give such directions, and to take such orders concerning the capital and property of the association and the management and disposition thereof, as they may think proper; but that power is limited by a proviso that such orders and directions shall be consistent with the other provisions of the articles of association. And they must also be assented to by a majority in interest of all the shareholders. A majority of shareholders, at such annual meeting, have not the power, without the consent of all the associates, to give any order or direction which shall delay or impede the closing up of the affairs of the association, at the time and in the manner prescribed in the 24th article. It was not necessary, therefore, that the complainant, by his bill, should allege that no such order or direction had been given.
If the allegations in the bill are true, the complainant is entitled to the discovery and .relief covered by this demurrer. And the question as to the good faith of the trustees in delaying the sale of the lands and securities, for the length of time which has elapsed since the expiration of the six years, can only properly be considered upon the final hearing; in reference to the question of costs, <fcc.
The demurrer must be overruled, with costs; and the defendants must pay those costs and put in their answer within forty days, or the bill must be taken as confessed against them, unless further time to answer is given by a judge of the supreme court.