210 N.W. 38 | Minn. | 1926
Lead Opinion
In June, 1921, the district court levied an assessment of 100 per cent upon the stockholders. The basis of the assessment was their alleged constitutional liability to creditors. In August, 1921, the stockholders applied to the court for the vacation of the assessment. The application was denied, an appeal taken and the order reversed. See
The complaints in the receiver's actions combined the cause of action based on the assessment with those for the recovery of the amounts due for bonus stock. In some instances a lump sum was paid in settlement of both causes of action; in others a specific sum was paid to satisfy the claim for bonus stock. In no case did the total payment exceed the amount claimed on account of the bonus stock.
In February, 1925, the court ordered the receiver to refund the money the stockholders had paid in satisfaction of the assessment, but did not direct him to refund money received in payment for bonus stock. The names of the respondents were omitted from the order and none of the money they paid has been refunded.
Counsel for the appellants contends that the order appealed from is erroneous: (1) Because in effect and without cause it sets aside and avoids the settlements made by the respondents; (2) because the money was paid voluntarily; (3) because it was paid in whole or in part to release respondents from their liability for bonus stock.
The order does not annul other orders or judgments or set aside compromise agreements made between the respondents and the receiver. It merely directs how funds under the control of the court shall be disposed of.
There is nothing in the point first mentioned.
The rule that money voluntarily paid with knowledge of the facts, if paid to a person under a claim of right, cannot be recovered back, is not applicable here. The reasons for the rule are best stated in Preston v. Boston, 12 Pick. 7, and in Boston S.G. Co. v. Boston, 4 Metc. 181, and may be thus summarized: If a party would resist *368
an unjust demand, he must do so at the threshold. If he can only be reached by a proceeding at law, he is bound to make his defense in the first instance and cannot postpone the litigation by paying the demand and afterwards suing to recover the amount paid. If the rule were otherwise, the privilege would be left to him of selecting his own time and convenience for litigation and he might wait until the evidence on which his adversary relied was lost. See also Dickerman v. Lord Smith,
The court has control of all money in the hands of its receiver and may dispose of it in any manner not inconsistent with the rights of those who have lawful claims upon it. For reasons to be stated presently, the only persons who can have such claims are creditors who gave credit to the corporation after the bonus stock was issued, and their claims are limited to money received in payment for such stock.
A receiver is an officer or representative of the court and is subject to its control. His possession is the possession of the court. Dun. Dig. § 8247. Whatever he does under the order of the court regarding property or money in his hands is the act of the court. He is accountable to the court alone for the performance of his duties. I Tardy's Smith on Receivers, pp. 84, 93; I Clark, Receivers, pp. 25, 26.
Section 9498, G.S. 1923, provides that an appeal to this court may be taken by "the aggrieved party." In view of his relation to the court, the receiver is not aggrieved by the order from which he has appealed. Finch, V.S. McC. v. LaSueur County Co-op. Co.
One to whom stock has been issued as a bonus may be compelled to pay for the stock, if necessary to provide funds for the satisfaction of debts due to subsequent creditors of the corporation. State Bank v. Kenney Band Inst. Co.
There should be a rehearing, at which the parties in interest may offer evidence relative to the existence or nonexistence of subsequent creditors of the corporation, the amount of bonus stock issued to respondents, and the amount paid to the receiver therefor.
Order reversed. *370
On October 6, 1926, the following opinion was filed:
Addendum
The petition for a rehearing calls our attention to the fact that the receiver has admitted that the following named persons were entitled to the relief prayed for and that an order might be entered directing him to pay to Mark Elliott the sum of $40.50; to Mary Peters the sum of $12; to Henry Eiden the sum of $7.95; to Louis Gagne the sum of $13.71; and to Peter Gagne the sum of $13.74.
It is ordered that as to the above named persons the order appealed from is affirmed and reversed only as to the other persons who joined in the petition and appealed.