174 N.C. 245 | N.C. | 1917
From a perusal of tbe records and deeds, together witb tbe entries on tbe minute book, referred to in tbe second, third, and fourth paragraphs of bis Honor’s judgment, it appears that, proceeding under chapter 147, Public Laws 1913, a minority of tbe stockholders of tbe Tarboro Cotton Mills, for lack of dividends paid or earned for six and three years, respectively, have obtained a decree directing a sale by court commissioners of all tbe property and franchises of tbe Tarboro Cotton Mill, subject to an existent mortgage of $100,000, for tbe purpose of winding up its affairs and distributing its assets.
Tbe decree, reciting that it would be to tbe interest of all tbe stockholders, minority and other, that tbe stock as well as tbe property and corporate franchise be sold as a “going concern,” directed that all stockholders be required to file their stock, endorsed in blank, witb tbe clerk within sixty days, to be delivered to tbe purchaser under tbe sale, and on confirmation of tbe same, and that every stockholder who failed to deliver should be foreclosed of all right, title and interest in tbe stock,, and new stock should be issued instead thereof to tbe purchaser, etc.; that pursuant to such decree, tbe property, “real and personal, of said corporation, together witb its franchises, rights and appurtenances,” was sold on 26 June, 1914, by tbe commissioners, and bid in by Henry Staton at $29,000; and tbe sale, being duly confirmed and price paid, was on 30 June,-1914, conveyed to him, free and clear of any and all claims whatsoever, except said prior mortgage of $100,000, and be in return reciting that be bad acted in tbe matter for L. L. Staton, E. V. Zoeller, and Job Cobb, tbe three individual defendants, conveyed to them, their heirs, executors, administrators and assigns, “all tbe property described in bis said conveyance, and all rights, title and interests therein acquired by him as purchaser at said sale, either by deed or under and by virtue of said decree,” etc.; that within thirty days from said decree and sale and conveyance, to-wit, on 6 July, 1914, tbe purchasers met and proceed-'
“Present: L. L. Staton, E. Y. Zoeller, and Job Cobb, wbo remained tbrougbout tbe meeting. L. L. Staton was elected chairman and E. Y. Zoeller secretary pro tem.
“Tbe secretary read tbe court decrees and conveyances, and reported tbe 115.8 shares of stock delivered to Henry Staton, attorney, by tbe clerk of tbe court, bad been delivered to him. Copies of tbe decrees and conveyances were ordered filed with tbe minutes.
“Tbe vacancy caused by tbe resignation of T. E. Marshall as secretary was filled by tbe election of E. Y. Zoeller as secretary of tbe company, salary to be determined later.
“Upon resolutions unanimously carried, it was ordered that' tbe president, L. L. Staton, and tbe secretary, E. Y. Zoeller, issue to E. Y. Zoeller 527.6 shares of stock, and to Dr. L. L. Staton 527.7 shares of stock, and to Job Cobb 527.6 shares of stock; the said parties having agreed that their interests as purchasers of tbe property were in proportion of one-third each, that being tbe liability of each as between themselves on tbe endorsements of notes of tbe factory outstanding.
“Upon resolutions unanimously carried, it was agreed that Henry Staton be paid in stock 61.6 shares for services rendered and expenses incurred in assistance to tbe purchasers and tbe company, and a certificate for 61.6 shares was ordered issued to him. This is not to affect in any wise any claim be might have against tbe company for loans, and it being understood also as between tbe endorsers of tbe Mutual Alliance Trust Company’s note be should be protected against liability.
“Tbe purchase of tbe company by others having divested H. L. Staton and H. 0. Bridgers of stock ownership in tbe company, their directorship therein was declared terminated, and Henry Staton elected to fill one of tbe vacancies so made.
“Tbe certificates of stock directed in tbe foregoing to be issued were issued and delivered to tbe respective parties.
“Tbe president reported that tbe cloth of No. 2 mill was being started up.
. “Above minutes read and approved before adjournment.
“E. Y. Zoeller, Secretary."
■ And thereafter, as stated in tbe fifth paragraph of tbe judgment, tbe owners and holders of said stock continued to operate “said property as tbe Tarboro Cotton Factory, and contracted tbe bill of plaintiff in tbe name of tbe Tarboro Cotton Factory, and plaintiff accepted notes of tbe Tarboro Cotton Factory in payment of tbe same.”
Chapter 147, Laws 1913, under which this decree and sale were had,, provides that, except in case of corporations for religious, charitable, fraternal, or educational purposes, and except public-service and banking corporations, whenever stockholders owning as much as one-fifth or more of capital stock of a corporation shall apply to the court by petition and allege and show that for six years preceding no dividend has been paid, or for three years no dividend as much as 4 per cent has been earned, the court shall enter a decree for dissolution of the corporation, a winding up of its affairs and distribution of its assets, provision being also made looking to proper notice to shareholders and persons having claims against the company or its property. Standing alone, this statute might be considered as confining the court, in such a proceeding, to a decree strictly of dissolution, involving a destruction of the corporate franchise, but when construed as it should be.(Keith v. Lockhart, 171 N. C., 457),. in connection with other provisions of our statute law on the subject, notably Revisal, chap. 21, secs. 1238, 1239, 1240, 1241, the court had ample power, in our opinion, to enter a decree for a sale of the franchise with the corporate property, transferring the same to the purchasers and conferring upon them the right to reorganize and carry on the business-as a new corporation.* Coal and Ice Co. v. R. R., 144 N. C., 732. These sections referred to comprise a distinct subdivision of the chapter on corporations, entitled “Reorganization” (section 1238), providing that whenever the property and franchise of a corporation shall be sold under a judgment or decree of court, etc., or under execution, to satisfy a mortgage debt or other incumbrance thereon, such sale shall vest in the-purchaser all the right, title, interest and property of the parties to the-action in which such judgment or decree was made to said property or franchise so sold, subject to all the conditions, limitations and restrictions of such corporation and such purchaser and his associates, not less-, than three in number, shall thereupon become a new corporation, by such name as such persons shall select, who shall be the stockholders in the ratio of the purchase money by them contributed, and shall be-entitled to all the rights and franchises, and be subject to all the conditions, limitations and penalties of such corporation when property and franchises shall have been sold,” etc.
Section 1239 provides that the purchasers shall meet within thirty days for the purpose of reorganizing.
Section 1240. That the persons shall adopt a corporate name and seal,, determine the amount of capital stock, and have power and authority to-issue certificates on such shares and amounts as they see fit.
This section contains also a proviso that nothing in the chapter shall divest or impair the lien of any prior mortgage or encumbrance, thus justifying that portion of the present decree that sold, subject to the first mortgage of $100,000. It was the evident design and purpose, as it is the express meaning of these sections, not only to provide a successor to an insolvent corporation that might renew and carry on its business when desired, but that the franchise shall constitute an asset enhancing the value of the property to be distributed, and it is clear that the word “encumbrance” in the statute was not used in the restricted sense of an encumbrance on realty alone — that is, an estate or interest in property, or a burden thereon, tending to diminish its value, usually in the form of a lien, but embracing the property of the corporation, both real and personal, including its franchise. The term, as used in the statute, should be, properly extended to any and every claim which imports a liability to sale as a whole by judicial decree. And this proceeding, which contemplated and authorized a disposition of the entire property, including the franchise, and a distribution of the proceeds among creditors and claimants, who were notified to appear, and among the stockholders, should there be a surplus, comes within the words and meaning of the statute, and justifies and upholds the sale and conveyance of the franchise conferring on the purchasers the right of corporate existence.
The portion of the decree which undertakes to eliminate the interest of the old stockholders by surrender and cancellation of their shares had no direct effect on the right of the parties. These old holders had a right, of course, to share in the assets if there was a surplus, and that is allowed them by the decree, but so far as the new corporation is concerned, the judicial sale under the statute effectually destroyed or annulled their holdings, and the case stands, as stated, as upon a sale of the corporation franchise and property as a whole, designated in the recital only as a “going concern.”
Holding then the property and franchise with the right to organize thereunder, the question recurs on the conduct of the parties and its proper significance after their purchase. By reference to the minutes, it will appear that, within the thirty days as required by the statute, they met and apportioned the stock among three defendants, except 61 shares allotted to Henry Staton for his services. They elected a presi
These omissions, if they were such, were no doubt due to the fact that in its recital the decree stated that it was to the interest of all parties that the corporation be sold as a going concern, and the purchasers may have thought — erroneously thought — that they were restricted to the provisions of the old charter in the respects suggested, but they were evidently acting in good faith about it, and on a proper consideration of, these proceedings, we are by no means confident that these parties did ,j not becomes a corporation de jure — that is, with a charter or law author- ; izing it. They have complied substantially with the charter require- | ments looking to a completed organization; and very certain we are that, ‘J as to this claimant, they became at least a corporation de facto — that is, f having a charter and law which authorized it. They have made, in good * faith, an attempt at organization with a colorable compliance with the charter requirements, followed by user of the corporate powers, or some of them.
So far as the State is concerned, the final distinction between the two is that one can successfully resist a suit by the State or sovereign which
In College v. Riddle, supra, the Court approved the definition of a corporation de facto given in 10 Cyc., to-wit: “That there must be a statute under which it might organize, a bona fide attempt to organize pursuant to the statute, and an actual user of corporate powers incident to such organization.” Upholding a conveyance of property by such a corporation, the opinion said, further: “And as such, and in reference to third persons, it could take and hold property and exercise all the powers of .a corporation de jure ” citing Ferguson v. Noerenburg, 52 Minn., 239; Investment Co. v. Davis, 7 Ind. Ter., 152; Marshall v. Keech, 227 Ill., 35; 1 Clark and Marshall on Corporations, sec. 81. And, further, its powers to act could only be drawn in question by the State on suit regularly entered.”
In Board of Education v. Berry it was held, among other things: “If there has been a bona fide effort to comply with the law to effectuate an incorporation, and the persons affected thereby have acquiesced therein, and have exercised the functions pertaining to the corporation, it becomes a de facto corporation, whose corporate existence cannot be litigated in actions between private individuals nor between private individuals and the assumed corporation. And, again, if a corporation de facto exists, it may exercise the powers assumed, and the question of its having a right to exercise them will be deemed one that can be raised only by the State.”
If it be conceded, therefore, that in this instance there has not been substantial compliance with the law as to organization, constituting a corporation de jure, we are of opinion, on this record, that these purchasers, holding a charter which gave them the authority, have met- all the requirements as to a corporation de facto, and have been properly protected from individual liability.
We have purposely refrained from resting our opinion on the position of incorporation by estoppel, which was also suggested for defendants.
We find no error in the record, and the judgment of the court is
Affirmed.
Hoke, J. For the reasons stated in the above opinion of Fuel Co. v. Staton et al., and on exactly similar facts, a judgment denying individual liability is affirmed.
Judgment affirmed.