*1 end that possession to respondent’s assets in for tbe obtainable pos as large percentage might as secure depositors and creditors Bank, State v. Denton rel. Sorensen ex on their claims. sible Spillman v. American ex rel. 486, 253 670, 671; W. N. State Neb. This is 42, 239 N. W. Scottsbluff, 122 Bank of Neb. more endeavoring he discovered that to do when respondent what was sale. petitioned for a new order of lots and could be obtained authorizing appellant vacated original a sale to The order appel entered, after notice to at term which it the same at hearing. think it is clear from the record that lant, and after a authorizing a mistake made in a sale of had been $1400 when could be obtained. acted to correct $2500 The court any binding pursuant had into mistake before contract been entered delivery order, to its before a sale was consummated appellant. jurisdiction, upon the deed to The court acted within its good shown, vacating not cause did abuse its discretion in original entering authorizing order an order sale of the parties price. to third at an increased Hyde Bradley, (7(7., affirmed. concur.
PER foregoing opinion CURIAM: The Dalton, C., adopted opinion judges as All court. concur. T. Trustee, as Straus,
Samuel and William J. Orthwein, Agnes Cotrustee, Appellants, v. Julius E. Tribout, C. Tribout, a Corporation, Defendants, Company, Chase Hotel Inc., Corporation, Appellant, Respondent, State of Claimant, Appellant, Respondent. Missouri, S. W. 617. One, January 4,
Division *2 Sullivan, Reeder, Finley Games for Straus, c§ Samuel J. T. Trustee, Orthwein, and William R. Cotrustee; Jones, Hooker, Gladney & Grand for Chase Inc. Joseph A. Lennon Bussell
Boy Attorney General, McKitirick, Missouri; Wil- Attorneys General for the State of Stone, C. Assistant Marbury liam counsel. G.
HYDE, is a collect proceeding C. This taxes, begun by by in action intervening petition filed the State this trial mortgage. for foreclosure of a of trust and chattel deed judgment $2273.42, amount of the principal court entered 1934, due, years 1933, be claimed to penalties; but denied interest prior a first $2273.42 “amount of is and shall be ordered properties” paramount all of the herein involved. All We have interested jurisdiction parties because have appealed construction and file of the revenue laws of a joint abstract. [1] involved, meaning' of this State is within the Section Article of our Constitution. n (on This suit was commenced foreclose deed of trust building) contents) (on given secure chattel payment building, of funds borrowed to build and furnish the hotel (containing known as in St. Louis. the Chase This deed mortgage) by E. 1, 1921, was made October Julius Tribout owner, Company, subsequent and wife. Default the Chase Hotel possession given plaintiffs, occurred and at that time bondholders, trustees June, who this foreclosure suit commenced suit, accounting this In the trustees asked that an be had to due; that, the amount “to the amounts satisfy determine due,” mortgaged found to premises be and personal sold;” equity redemption '“be ordered and that “the of defend ants in and to said be foreclosed.” Defendant forever Company, conveyances Hotel mesne from Tribouts, usury unsuccessfully asserted the defense of the trial court and in Tribout, this court. 342 Mo. [Straus filing November, after of answer and cross petition, plaintiffs filed a supplemental petition asking a receiver “in with provisions accordance Article IX of (this mortgage provision said was set out supplemental petition), possession such receiver to enter into hold, manage operate same *4 ’’ under the orders this appointed Henry court. The court W. Kiel as receiver singular “of all and property the premises described and petition in particularly the property and the or in referred described in to the mortgage trust deed chattel 1921,” and dated October confirmatory and mortgages chattel in executed 1923 and 1929. The receiver immediately was directed property to possession of take said premises and operate, manage to and conduct hotel known and the ’’ ‘‘ as the Chase operate departments and was all authorized of said hotel.” given power employ He was help, to enter into utility contracts, repair, service and to redecorate rehabilitate the and premises. and enjoined order This also “the Chase Hotel Company and officers, directors, agents employees its and . . : from interfering or in. disturbing manner whatsoever the Re possession.” ceivers’ February, 1935, the court entered a decree Special foreclosure to sell Commissioner the premises. the appeal After unsuccessful the court, to this sale was 31, 1938, made on October a to Bondholder’s Committee. confirming Order made 1938. sale was December franchise taxes of Chase for 1933 and claim The State’s for 1935 franchise October, 1934; claim filed Company was Hotel tax for 1936 franchise 1936; and claim March, was filed tax 1936. September, filed (based on Section Attorney General It is the contention taxes, for a lien for has these 1929) that the. State It. S. all liens and precedence over “takes 1933, 1934, 1935 and regard to dates property) corporation’s without mortgages (upon the that receiver contended mortgages.” It is also liens and of such Company, used Hotel corporation, receiver of was the of these payment and became liable corporate its “he is provided that appointing the receiver franchise taxes. The order becoming or hereafter taxes, now due pay all whether authorized to ’’ comply register corporation in order to payable. The receiver did required annual statements with Section and made the position, described his corporation He properties the above Receiver of reports, in these as “Circuit Court testimony of the appeared from the corporation.” named It also meeting attorney of its corporation that the last board early 1932;” officers filed part of that directors “was in the thereafter;” year or two affidavit “for the first anti-trust deed it had no other than that covered accounts foreclosed, except some uncollected herein default; that the and funds in its bank at the account time turned over money and accounts had been trustees contended finally pay property delinquent. The court found them to taxes then money made al- part favor of the of this costs, to the cor- attorney’s fees and part, lowances poration. plain
It seems that Mr. Kiel a receiver of Corporation property pending foreclosure, not a receiver of Clearly operated time of default. which owned and the Hotel at the his benefit of operate function was to hold and for the debt, operate liquidate or holders of not to general or stockholders. benefit of its creditors 488; Savings Pomeroy U. (Iowa), Bank v. N. [Farmers’ v. 316; Scott Ry. Y.), Trust 5 N. E. (N. Co. N. Y. W. & B. Co. Mortgage & Co., 17; York Title Farmers’ Loan Trust 69 Fed. New & Roxy Theatres Arms, Y.), Co. v. Polk 186 N. E. Kane v. (N. Inc. Hood, Corp., & Trust Fed. Bank of Commerce Co. why good such a receiver Fed. know of reason no *5 going hotel operation not of a could be authorized the to continue it foreclosure, operating business on premises pending the without obtaining through of corporation. simply a a method This would be purpose mortgaged for profits the rents and of the the mortgage provision of application mortgage upon debt; and the the 154 such, powers “all provided that should have
for a he receiver entry,” specifically au of and of the Trustees in case duties only Anyhow, proceeding before the operation. thorized such court, appointed, was an action when he was to foreclose mortgage it, confirmatory its deed, contained chattels, only Therefore, to that case. he act by allegations receivership of the only kind of a warranted receiver, petition, a supplemental petition for a receiver allegations were pending foreclosure. no There petition support authorize of the in the or the dissolution by cor winding corporate poration up receiver, its a business or operating corporation Receivership corpora purpose. of a only ancillary only tion jurisdiction and a court can have relief proceeding such a a case there is a cause of action stated where Kopke relief which it. ultimate warrant ex rel. would Mulloy, 1, (2d) 806; Sager v. 329 43 & Mo. S. W. ex rel. Lund 333, Sun-Ray v. Mulloy, (2d) 1; 330 49 v. Mo. S. W. Laumeier Prod Co., 542, (2d) 640; Building ucts 330 50 Corp. Mo. W. S. Monticello 1128, v. Monticello 330 Co., Inv. Mo. 52 S. W. 545.] ultimate relief sought herein was foreclosure. Such relief did not require liquidation (or operation) corporate owner of the property, general creditors, sought the benefit of and that was not by any party We, therefore, hereto. hold that the receiver was not the receiver of corporation. hold, defendant We also which is of course obvious, that such a plaintiff’s receiver could not waive liens prior by any it making by create information returns or thing he did in this else case. by 4641,
The annual franchise tax is established Section corporation by Other provided taxes are other sections of the same Article. Chap. 32, R. S. [Art. 1929.] 1929, provides: “The penalties paid by provisions taxes and of this article shall be a first lien on all assets corporation within this state.” Section provides collection all taxes established Article suit “in name ’’ ‘‘ state, and makes therein a on properties first lien all and assets of corporation within provided this state.” The taxes against Article are all corporation taxes itself and not are like specific upon real levied the interest of every person in such real property. Engineering & Construc [Morey tion v.Co. St. Co., Louis Artificial Ice Rink Mo. 146 S. W. State ex Clements, rel. McKee Mo. 219 S. W. Anally Mc Drainage Little River Dist., Mo. Here we given case first mortgage by pifivate have of valid individual' estate, owners real personal property. Years later estate, real property, and other subject to a sold buy? Surely debt. What did it
155 property. redemption in encumbered equity of nothing but the bought trustees, for the holders mortgage debt and the pay the It did not Later their after condition broken. debt, possession took After in their stead. a receiver who acted turned over possession taxes, years the State assessed happened, had all this after commence delivery possession subsequent to the default foreclosure, which at all times corporate against ment hold, such under mortgage. cannot only subject to the owuied corporation” circumstances, “property and assets lien of meaning within of Section than taxes, anything such more State attached thereunder at in the actual interest and estate redemption. namely: equity of assessed; time were rulings lien holding as to State’s Such is with line recent 1937, p. 4598A, amended Laws established bv (2d) 438, 126 W. Brown, 344 Mo. S. Realty Co. [Vincent It is 1162; Mining Co., Supp. Mosby re Coal & Fed. 1022.] concerning lien also in line with what we have held rights pre against the of holders of upon assets of insolvent banks as Exchange Bank, 331 Mo. ferred claims. ex rel. v. Farmers’ 129; Bank, 56 W. 66 S. W. (2d) S. In re Mt. Vernon 334 Mo. (Mo.), 854; l. Bank Missouri c. State v. of Southeast juris 107 W. It also in with decisions other is line 1.] Building & dictions somewhat similar situations. Avenue [Third J.), (2d) 20; Loan Assn. 1 Atl. American (N. Scottish Prothero Mortgage 272 Pac. 47 A. L. (Idaho), Co. v. Minidoka Co. notes Herrington, 120 Mo. and A. L. R. also Morrison v. see system It with our likewise accordance 568.] 1929, 12 personal collection of property taxes. Sec. [See Mo. We, therefore, provided Stat. Ann. hold that the Section 4647 corporation actual interest wrasintended to attach to the tax in all at the time owned it assessed; plaintiff’s wras precedence over it not take did acquired valid already on the when However, it have said subject mortgage. title to what we to such is not to applied taxes under Sec. computation of franchise R. S. 1929. GC., Dalton, concur. Bradley reversed. adopted, PER Hydu, C., is foregoing opinion by CURIAM: The opinion as the judges the court. All the concur.