261 Mass. 426 | Mass. | 1927
The plaintiff having recovered judgment against the defendant James F. Flynn, execution for which was returned unsatisfied, brought the present suit to reach and apply in satisfaction of the judgment certain real and personal property which it is alleged Flynn with intent to cheat and defraud the plaintiff transferred to, and caused to be taken or placed in the name of, his wife, the defendant Josephine M. Flynn, as well as personal property claimed by the defendant, Hotel Osborne, Incorporated, for which no valuable consideration was given. James F. Flynn having on his own petition been adjudged a bankrupt August 1, 1922, James H. Duffy, who had been appointed trustee, was properly allowed to intervene and to prosecute the suit for the benefit of the bankrupt’s creditors. U. S. bankruptcy act 1898, § 47 (2). Metcalf v. Barker, 187 U. S. 165. We shall hereinafter refer to Duffy as the plaintiff. During the proceedings before the master to whom the suit had been referred, the plaintiff amended the bill, to which amendments the defendants Flynn and the defendant Hotel Osborne, Incorporated, filed answers. ■ They also alleged numerous exceptions to the master’s report. But, an interlocutory decree having been entered overruling the exceptions and confirming the report, from which no appeal was taken, the question before the trial court was, whether on the pleadings, the master’s report, and such inferences of fact as warrantably could be drawn therefrom, the plaintiff was entitled to relief. Kennedy v. Welch, 196 Mass. 592, 594. A final decree having been entered for the plaintiff, the defendants Flynn and the Hotel Osborne, Incorporated, appealed.
It is contended that the decree in the case of Star Brewing Co. v. Flynn, 237 Mass. 213, which was pleaded in bar, precludes the plaintiff from maintaining the bill. The plaintiff,
The contention that the defendant Josephine M. Flynn was a purchaser for value of the real estate which the bankrupt caused to be conveyed to her, or that it was a valid gift, cannot be sustained under the findings of the master. It appears that Mrs. Flynn gave no consideration for the purchase, and that at the date of the transaction her husband intended “to incorporate so that none of his creditors could get him.” The bankrupt was engaged in the business of keeping a hotel under the name of “Hotel Osborne,” and on August 22, 1918, when his debts exceeded his assets, he organized the Hotel Osborne, Incorporated, which did a successful business, the proceeds of which enured to his sole benefit, and that, although he was its president and treasurer, no formal transfer of the personal property or equipment of the hotel was made to the corporation. The business continued to be carried on without any ostensible change except as to the banking institutions in which the revenue derived from the business was deposited. The applications for licenses issued for each succeeding year from May 1,1918, to and including April 30, 1921, contained the statement made by Flynn under oath, that he was the sole legal owner of the business. See G. L. c. 140, § 2, 4, 20. The corporation, while a distinct legal entity, nevertheless was an instrumentality created, controlled, and operated by Flynn to secrete his property and circumvent his creditors. It must be presumed in view of these circumstances that when Flynn with knowledge of his financial condition devised the corporation he intended thereby to accomplish the natural results of his acts if the plan was successful. The device does not of itself aid him. It is not available as a shield to protect him from the consequences. Matthews v. Thompson, 186 Mass. 14, 20. Forbes v. Thorpe, 209 Mass. 570, 582. Gardiner v. Treasurer & Receiver General, 225 Mass. 355, 367. Reed v. Cook, 238 Mass. 83, 92. The corporation is also chargeable
The business moreover after the incorporation was conducted by Flynn under no authority delegated directly or indirectly by the board of directors, or by any person representing the corporation, or the stockholders. From the proceeds of the business Flynn, after making disbursements required for hotel expenses, withdrew money, which he handed to, or deposited in the name of, Josephine M. Flynn under the designation of “dividends or compensation.” It is found that, even if one share of the capital stock was issued to Josephine M. Flynn when the corporation was organized, she made no payment in cash nor transferred any property therefor. It is also found as to the shares of stock subsequently issued in her name, that the money to pay for the stock came from her husband. The master’s history of the bankrupt’s manipulation of his property, in which his wife in so far as necessary joined and in which the corporation was a participant, shows a carefully planned scheme, the sole purpose of which was to place his property beyond the reach of creditors if, as events proved, he should be obliged to go into bankruptcy.
The statute of limitations is also pleaded by Josephine M. Flynn and by the corporation, on the ground that the allegations of fraud in the tenth, eleventh and twelfth paragraphs of the amended bill relate to transactions which occurred more than six years before the amendment was filed. While the amendment was allowed May 26, 1925, the original bill was filed July 20, 1922, and the bill as amended became the original bill which had been brought seasonably. Cole v. Wells, 224 Mass. 504, 512.
Decree affirmed with, costs.
