Ardmore Nat. Bank v. Briggs Machinery & Supply Co.
| Decision Date | 10 March 1908 |
| Citation | 94 P. 533,20 Okla. 427 |
| Parties | ARDMORE NAT. BANK v. BRIGGS MACHINERY & SUPPLY CO. et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The receiver of an insolvent, nongoing corporation takes the property of the company for the creditors, subject to such equities, liens, or incumbrances, whether created by operation of law or by act of the corporation, which existed against the property at the time of his appointment.
[Ed Note.-For cases in point, see Cent. Dig. vol. 42, Receivers §§ 137-144.]
The receiver's title and right to possession of the property of an insolvent, nongoing corporation vests from the date of the original order for the appointment, although the proceedings may not be perfected until a later date. The receiver's title and right to possession during the interval between such original order and the time of perfecting his appointment are superior to those of a judgment creditor who levies upon the property under his judgment during such interval.
[Ed Note.-For cases in point, see Cent. Dig. vol. 42, Receivers §§ 126, 138.]
Where a vendor, after the appointment of a receiver to take charge of the property and affairs of an insolvent, nongoing corporation, files its plea of intervention setting up all the facts in relation to certain reservation of title notes taken by the vendor for sales of machinery to the insolvent corporation, and further alleges that the reservation notes are liens on the property and prays for their foreclosure, and also prays for general relief, this is not such an election as will preclude the intervenor from afterwards amending its plea of intervention and asserting title and right to possession of the property described in the reservation notes as against one who claims to have a lien thereon subsequent in time to the reservation notes, where such lien, if it attached to the property at all, came into existence after the property fell into the hands of the receiver, notwithstanding the reservation notes were not filed as chattel mortgages.
The acknowledgment of a deed of trust, executed by a corporation grantor to secure payment of certain promissory notes, is a ministerial act. Where such an instrument is acknowledged before a notary public, who was at the time a director and treasurer of the grantor corporation, and also indebted for unpaid subscriptions to its stock, which facts were known to the grantor, but there was nothing on the face of the instrument or acknowledgment indicating such relationship, the deed of trust was entitled to registration, and the registry thereof was notice to subsequent purchasers, incumbrancers, or lienors.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Acknowledgment, § 109.]
Error from the United States Court for the Southern District of the Indian Territory at Tishomingo; before Justice J. T. Dickerson.
Bill by the Briggs Machinery & Supply Company and others against the Tishomingo Oil & Cotton Company, in which suit the Continental Gin Company and the Ardmore National Bank and others intervened. Judgment for complainants and the intervenor the gin company, and against intervenor the Ardmore National Bank, and the bank brings error. Affirmed.
Ledbetter and Bledsoe, for appellant.
Stuart and Bell, for appellees.
The appellees Briggs Machinery & Supply Company, Collins & Dulaney, and Stilwell-Bierce & Smith-Vaile Company, who hereafter will be called the complainants, commenced the proceedings out of which this suit grows by filing their bill in equity alleging that the Tishomingo Oil & Cotton Company, which will hereafter be called the Oil Company, was indebted to them severally as follows: To the Briggs Machinery & Supply Company, $7,864.64; to Collins & Dulaney, the sum of $4,580.88; to the Stilwell-Bierce & Smith-Vaile Company, in the sum of $5,546.65. All of these sums were evidenced by promissory notes. Contemporaneously with the dates of said notes, and for the purpose of securing their payment, the Oil Company made, executed, and delivered its certain deed of trust to J. C. Weaver, as trustee, whereby it conveyed to said trustee all the physical properties of said Oil Company situated at Tishomingo, Ind. T., the same being particularly described in the complaint and said deed of trust exhibited therewith. It was further alleged that the Oil Company had become insolvent and unable to secure funds to operate its business, and that it was a nongoing concern, and further that said manufacturing establishment consists of valuable and costly machinery, and the same was liable to waste, and that it was being greatly damaged for the want of care. The complaint concludes with the following prayer: After the complaint was filed a great many of the creditors of the Oil Company, probably all of them, filed their pleas of intervention setting up their respective claims, and praying for relief. The court below took jurisdiction of the entire matter, and rendered to each creditor the relief the court found he was entitled to, disposed of all the assets of the Oil Company, and practically wound up its affairs. On the same day the complaint was filed Judge Townsend appointed Kirby Purdom of Tishomingo receiver of the Oil Company, who duly qualified as such receiver. On the 3d of November following Judge Townsend removed Kirby Purdom as receiver, and on the same day appointed B. R. Brundage, who likewise qualified as required by law and took charge of all the assets of the defendant company. On the 24th day of November, 1903, the Continental Gin Company filed its original plea of intervention alleging that the Tishomingo Oil & Cotton Company was indebted to the intervenor on certain promissory notes; that the notes were given for the purchase price of machinery purchased by the Oil Company from the Gin Company; and that it was recited in said notes that the title, possession, and ownership to said properties does not pass from the intervenor until the notes and interest are paid.
There were further allegations to the effect that the Oil Company was indebted to it upon four promissory notes all payable to its order at Birmingham, Ala., or Dallas, Tex., and aggregating the sum of $4,500, exclusive of interest and attorney's fees, said notes being described specifically as to date and maturity; that all the notes were past due and only $50 had been paid thereon; that two of the notes dated January 1, 1902, were executed by the defendant for 6-106 Continental linter feeders and condensers, Inv. No. Br. 559, D. S. P., 239; and that it was recited in said notes that the title, possession, and ownership of the property should not pass from the intervenor Continental Gin Company until the notes were paid in full, and that the two notes dated July 31, 1902, were executed for one 3-70 Saw Munger Sliding Idler Gin outfit complete, with engine, boiler, pump, feeder, and connections, and it was recited in said notes that the title, possession, and ownership should not pass from the intervenor the Continental Gin Company until said notes were paid in full. Copies of the four notes were attached to the plea of intervention. It was also alleged that in all four of the notes it was provided that the intervenor should have full power to declare the same due and take possession of the property at any time it deemed itself insecure, even before the maturity of the notes, and that the intervenor deemed itself insecure, and had exercised the option given in the notes, which matured January 1, 1904, and it declared the same due and payable; that it had become necessary for the collection of said notes and the preservation of the intervenor's right in said property for suit to be brought; and that thereby the defendant became liable to the intervenor in the sum of 10 per cent. of the amount of the notes for attorney's fees, and that the intervenor had sued on the notes and employed counsel for that purpose. The prayer for relief read as follows: ...
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