111 Cal. 114 | Cal. | 1896
This is an action in equity, involving the ownership of certain mining property. Plaintiff became financially embarrassed, and the property was sold under execution sales, and also sold for nonpayment of taxes. Deeds passed to Morey, the defendant, under these execution sales, and also under the delinquent tax sale. Plaintiff appeals from the judgment rendered against it, and also from the order denying its motion for a new trial.
There are many questions discussed by counsel in
Upon an examination of the evidence we find this finding in all its material parts is fully supported; and such being the fact, the whole superstructure of plaintiff’s case must fall, for the foundation upon which it was built has been absolutely undermined and taken away. We think such is the necessary and only construction to be placed upon this finding. It discloses that Morey was neither a director de jure nor de facto. Morey was not a director de jure, for he was not a stockholder of the corporation when elected. Section 305 of the Civil Code declares that the directors must be selected from the stockholders, and also declares that directors must be holders of stock in an amount fixed by the by-laws of the corporation. Conceding that the by-laws of the corporation plaintiff fixed no amount of stock to qualify a stockholder for election as a director, still, under the provision of the code quoted, the director must be a stockholder. He must own stock in some amount, or his election is invalid. The fact that Robinson gave Morey one share of stock, weeks and perhaps months after the day of election, of which share of stock “Morey has had possession ever since,” entirely fails to meet the case, and is wholly lacking in curing the invalidities existing in his election. Neither is
We conclude that defendant Morey was neither a de jure nor a de facto director and trustee of the plaintiff corporation at the times set out in its complaint, and for such reason plaintiff fails to prove a cause of action. AVe find no error in the record authorizing a reversal of the judgment and a new trial of the case.
Harrison, J., and Van Fleet, J., concurred.
Hearing in Bank denied.