64 Minn. 175 | Minn. | 1896
Tbe plaintiff is tbe assignee of tbe St. Paul Electric Manufacturing & Construction Company. Tbe proceedings were bad under Laws 1881, c. 148,
Tbe insolvent company was a corporation organized under tbe laws of this state, and was engaged in tbe business of manufacturing electric light and power, and furnishing tbe same to its patrons. Tbe suit was commenced against tbe company September 25, 1893, by service of summons and complaint; but tbe complaint was not filed until October 17, 1893, — one day prior to tbe entry of judgment. On October 27, 1893, tbe electric company made an assignment for tbe benefit of its creditors, and tbe deed of assignment was filed tbe next day in tbe office of tbe clerk of tbe district court of Ramsey county. On October 27, 1893, tbe defendant caused an
We are asked by tbe defendant’s counsel to review and overrule tbe case of Tripp v. Northwestern Nat. Bank, 41 Minn. 400, 43 N. W. 60, bolding that tbe insolvent law of 1881 (chapter 148) is applicable to private corporations. No authority is cited, and no good reason suggested, for our doing so. We will state, however, that as a private corporation, at common law, could assign its property in trust for the payment of its debts, and could exercise that right to the same extent and in tbe same manner as a natural person, unless restricted by its charter or some statutory provision, and make preferences, if it saw fit to do so, we think it a wise policy wbicb brings those corporations within tbe limitations, restrictions, and privileges of tbe insolvent law of 1881. Tbe language of that law is broad enough to include private corporations, and, as their right to make such an assignment under it has been repeatedly recognized by tbis court, it should no longer be deemed an open question.
It is also contended by tbe appellant that tbe deed was unauthorized by tbe stockholders or directors of tbe insolvent corporation. Tbe complaint alleges that tbe deed of assignment was duly made by tbe corporation for tbe benefit of its creditors, and tbis deed was admitted in evidence, and shows that it was signed by tbe president and secretary of tbe corporation under its corporate seal, and that it was duly acknowledged before a notary public. Tbe presence of the corporate seal gave rise to a prima facie presumption that'it was affixed by tbe proper authority. 4 Am. & Eng. Enc. Law, 243, 244, and cases there cited.
Tbe trial court found tbe following facts in tbe case, and they
The next question arises upon the right of the defendant to a jury trial. This action was not brought for the recovery of money only, or of specific real or personal property. Title to the real estate in question passed to the respondent by virtue of the deed of assignment, and the defendant’s judgment, and its sale of the property under the execution issued on the judgment, constituted a cloud upon the respondent’s title to the property; and he had a right to invoke the equitable power of the court to remove the cloud of an apparent lien of the judgment, set aside the sheriff’s sale, and cancel the sheriff’s certificate. Such an action is not triable by a jury. Although the practical result would be the recovery of the property, yet the gist of the action is to get rid of a cloud resting upon the title, and thus make the property available as assets for the payment of the insolvent’s creditors.
Appellant also contends that the trial court erred in excluding the evidence of the secretary of the insolvent company as to whether he intended to give the defendant a preference by not putting in an answer to the complaint of the defendant in its suit against the insolvent. Conceding that this was error, it was cured by the subsequent evidence of the same witness, given without objection, to the effect that he had no intent either way upon the subject. This evidence was not contradicted by any oral testimony. Thus, the appellant had all the benefit of the witness’ testimony upon the subject which it was possible for it to secure, even if it had been previously admitted. But, if he had no active intent one way or the other, such passiveness upon his part could not, of itself, overcome the intentional preference which might be properly inferred from his acts, and which, unexplained, constituted a pref
Another point raised by the appellánt is that the deed of assignment does not, in terms, make an assignment of all of his unexempt property for the equal benefit of all his bona fide creditors who shall file releases of their demands against the debtor, as provided by the amendment to the insolvent law. Laws 1895, c. 66. The deed of assignment is for the benefit of all creditors, to be paid in full, if there are sufficient funds. This would include bona fide creditors, and fraudulent creditors . should not be allowed their claims, in any event. The phrase “bona fide,” in the amendment of 1895, does not add anything to the law as it existed before the passage of that amendment.
Other questions are raised by the assignment of errors, which we have carefully examined, but consider without merit, and the judgment of the trial court is affirmed.
See G. S. 1894, §§ 4240-4254.
60 Minn. 321, 62 N. W. 387.