75 Mo. 498 | Mo. | 1882
I.
It is not true as assumed by the demurrer that “ a corporation has no power or authority to*
II.
It is equally unquestionable that the unpaid shares are corporate assets, and, therefore, assignable. Adler v. Brick Manf'g Co., 13 Wis. 63; Webster v. Upton, 91 U. S. 65;
III.
And when these unpaid subscriptions are properly as. signed, they pass to the assignee; he represents the corporation and the creditors, and is the proper person to sue-for and collect the debts and assets. Thompson on Stockholders, § 340; Nathan v. Whitlock, 9 Paige 152. If he could not do this, his selection and appointment as. assignee would be a nugatory act.
IV.
An assignment for the benefit of creditors is a trust, and the assignee is to be regarded as a trustee. Perry on Trusts, § 585. Now, the rule is well established that if one-of several trustees refuses to accept and execute the trust, the whole estate will vest in the others who act, as much-so as if the refusing trustee were dead, or never had the-trust tendered him. King v. Donnelly, 5 Paige 46; Perry on Trusts, § 273; Hill on Trustees, p. 225, et seq. Treating the allegation in the petition that “ said White failed and refused to qualify as assignee under said deed,” as tantamount to an averment of disclaimer on the part of White, we have no doubt that Shockley, the acting assignee, was the only proper party to sue, and that consequently, White, if joined, would have been improperly joined with him.
We have thus examined in brief the grounds of the demurrer, whether general or special, and hold them all groundless, and judgment reversed and cause remanded.