Lead Opinion
This was an action by the receiver of the Vernon Insurance & Trust Company, a corporation which had been engaged in the insurance business under a special charter from the State of Indiana, to enforce the collection
So far as necessary to refer to the complaint, it may be said that, in addition to alleging the appointment of a receiver, at the suit of the prosecuting attorney of Marion county, and the granting by the court of authority to sue, the pleading alleged: ‘ ‘ That said note is now in the possession of plaintiff as receiver of said Vernon Insurance & Trust Company, and is a part of the assets thereof; * * * that plaintiff is winding up the affairs of said Vernon Insurance & Trust Company under order of the court, and is administering the assets thereof for the benefit of the creditors of said corporation, and that the valid claims against said corporation are very much more than can be realized from said assets, and that if all of the stock subscriptions and stock notes and all of the other assets of said association can be converted into money, a large portion of the valid claims against said corporation will yet remain unpaid, and that said valid and unpaid claims against said corporation are long past due; * * * that, notwithstanding said note provides for the payment of the same in instalments, all of the same is now due for the benefit of creditors, and said creditors have no other assets to rely upon for the payment of their said claims.”
For reasons hereinafter stated, it is unnecessary to indicate
Under the head of “points and authorities,” appellant adduces but two general propositions, viz.: (1) “One who has subscribed to the capital stock of - a corporation cannot escape payment of his subscription by pleading the fraud of the corporate officers or agents in securing the subscription, where the rights of creditors have attached. If others in the meantime have acted upon the faith of such subscription and the corporation has become insolvent, su'eh fraud is no defense.” (2) “The receiver in such'case stands for the ered
"While it is true, as we have shown, that the receiver may collect the assets for the benefit of the general creditors, yet back of this and of all other considerations lies the question as to the nature or source of his title for the purposes of litigation, as distinguished from those of administration, assuming that he has been appointed in an ordinary receivership proceeding for the purpose of administering upon the estate of an insolvent corporation, which would be the most favorable assumption to appellant.
There can be no doubt of the proposition that it is the general rule that in the ordinary receivership which is extended over the affairs of an insolvent corporation, the receiver can only sue in the right of the corporation, and that he is subject to all of the equities which would have been .available against it. This rule is subject to the exception that the receiver so far represents the general creditors that he may avoid transactions in fraud of their rights. "Since the appointment of a receiver in limine does not affect any questions of right involved in the action, and does not change any contract relations or rights of action existing between parties, it follows as a general rule that in ordinary actions brought by a receiver in his official capacity, to recover upon an obligation or demand due to the person or estate which has passed under the receiver’s control, the defendant may avail himself of any matter of defense which he might have urged had the action been brought by the original party instead of by his receiver.” High, Receivers (3d ed.), §245. In a subsequent section of the same work the author says: “While the receiver of an insolvent corporation is thus treated as the representative of both creditors and shareholders, so far as any beneficial interest is concerned, yet, for the pur
In the leading case of Curtis v. Leavitt (1857),
In Smith v. Johnson (1898),
The limitation upon the title of a receiver, appointed un
Turning, now, to our own cases, it is first to be observed that in Coffin v. Ransdell (1887),
In Audenried v. Betteley (1862),
Counsel for appellant have cited a number of cases from other jurisdictions in which receivers have maintained actions upon stock subscriptions where the rights of subsequent creditors were involved, but nearly all of them are cases in which the court merely assumed that the receiver represented such creditors. Indeed, we may say concerning the authorities, that if there is any case which, upon discussion, draws in question the doctrines we have announced concerning the limitations upon the authority of a receiver, it has escaped our attention.
There is no available error, and the judgment should therefore be affirmed. It is so ordered.
Rehearing
On Petition for Rehearing.
There certainly must be some distinction between prior and subsequent creditors in such a case as this. It will not do to assert that, because of the existence of one or many of the latter class of creditors, the whole subscription must be paid in, with the result that prior creditors who were not misled would share therein in the making of the distribution. Such a holding would be in utter disregard of the principles of estoppel and of justice as respects such creditors.
The receiver cannot represent subsequent creditors on ground of estoppel, for their interests and his are opposed to each other. His claim must be founded on the theory that the subscription belonged to the corporation, and therefore is a part of the general assets; theirs must rest on
We did not hold generally that a receiver cannot represent different classes of creditors or claims. What we did hold was that, in an action on a stock subscription, the receiver must base his right on the title of the corporation, and that it is incompetent for a court in such a case to charge him with the further duty of representing creditors whose rights are personal and antagonistic to his.
In the remedy suggested in the principal opinion we perceive none of the serious difficulties which appellant’s counsel apprehend; on the other hand, to permit a recovery by the receiver, by permitting him to assert any and all equities which certain creditors may possess, is to assert that the equity of the defendant is to be disregarded in favor of some who have no equity, and that creditors who have superior equities may be compelled to prorate with creditors who have no standing to complain, since, if the receiver recovers, the fund arising from the litigation will pass into his hands with equities that are undistinguished and undistinguishable. The only true view in such a case as this is that the receiver is the adversary of those who seek to avail themselves of subscriptions on the sole ground of the corporation’s ostensible proprietorship of such subscriptions, without claiming that it was in law the owner thereof. The
We have carefully considered all questions raised in the petition for rehearing, and perceive no ground for granting the same.
