Eppright v. Nickerson

• Decision Date: 31 October 1883
• Citation: 78 Mo. 482
• Parties: EPPRIGHT, Appellant, v. NICKERSON.
• Court: Missouri Supreme Court

78 Mo. 482

EPPRIGHT, Appellant,

v.NICKERSON.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Johnson Circuit Court.--HON. NOAH M. GIVAN, Judge.

AFFIRMED.

J. J. Cockrell and Peter E. Bland for appellant.

A. Comingo for respondent.

HENRY, J.

This is a proceeding which was commenced in the Johnson circuit court against defendant Nickerson, by motion, under section 13, article 1, chapter 37, Wagner Statutes. Plaintiff obtained a judgment against the Warrensburg Savings Bank on the 21st day of February, 1880, and execution was issued on said judgment which was returned unsatisfied, and the motion was filed on the 26th day of August, 1880, after the return of said execution. Prior to the judgment in plaintiff's favor, in his suit against the bank, on the 24th day of January, 1880, the said bank by order of its directors made an assignment to Joseph Brown of all its “real estate, goods, chattels, effects and credits” for the use and benefit of its creditors, and said Brown duly qualified and entered upon the discharge of his duties as assignee. Nickerson, at the date of the return on the execution before mentioned, was a stockholder of the bank to the extent of twenty-eight shares, only thirty per cent of which had been paid, leaving seventy per cent unpaid, for which no call had been made by the directors. Brown on his application was made a party defendant to this proceeding and filed his answer alleging the facts in relation to the assignment, and claiming as assignee the unpaid balance for the stock subscribed by Nickerson, who in his answer also set up as a defense to the plaintiff's motion, said assignment. Several questions have been elaborately and ably argued by counsel, and we shall proceed to notice them in their proper order.

1. CORPORATION: assignment for benefit of creditors.

First, it is contended that the assignment was made by the directors without the authority of the stockholders and was, therefore, ultra vires and void. As to the stockholders, if they did not consent, this proposition we think correct. Field on Corp., § 151; Abbott v. American Hard Rubber Co., 33 Barb. 580. In the latter case the question is elaborately and exhaustively considered, both by Sutherland, J., and Allen, J., and on this point we think it sufficient to cite that case and those relied upon by those learned judges in the opinions delivered by them. In the case at bar, no stockholder is complaining of the action of the directors, and the only stockholder who is a party to the suit relies upon the assignment to defeat plaintiff's recovery against him. It does not appear that the stockholders did not consent, nor that any of the stockholders ever complained of the conduct of the directors; and from their silence since 1880 their assent to the assignment may be reasonably inferred. The plaintiff himself proved his debt against the bank before the assignee.

It is also urged that the assignment was not properly acknowledged. The assignment and acknowledgment were as follows:

2. _____: _____: certificate of acknowledgment.

Know all men by these presents, That the Warrensburg Savings Bank, a corporation duly incorporated under and in pursuance of chapter 68 of the General Statutes of Missouri, and doing business in the town of Warrensburg, Johnson county, Missouri, in consideration of the sum of $1 to it in hand paid by Joseph Brown, of the same place, does hereby bargain and sell, transfer and assign and deliver unto the said Joseph Brown, all and singular, the real estate, goods, chattels, effects and credits of the said Warrensburg Savings Bank, to have and to hold the same in trust to collect and receive the same, and dispose of it, and the proceeds to distribute under and in accordance with the general assignment laws of the State of Missouri among all the creditors of the said Warrensburg Savings Bank, in proportion to their respective claims. In witness whereof, the said Warrensburg Savings Bank has caused these presents to be signed and acknowledged by its president and cashier, and the corporate seal to be attached, this 24th day of January, 1880.

The Warrensburg (Corporate

WILLIAM CALHOUN,

Seal) Savings Bank,

President.

Warrensburg, Missouri.

AMOS MARKEE,

Cashier.

STATE OF MISSOURI,

)

)

SS.

County of Johnson.

)

Be it remembered, That William Calhoun, president of the Warrensburg Savings Bank, and Amos Markee, cashier of the same, who are personally known to the undersigned, a notary public within and for the county aforesaid, to be the same persons whose names are subscribed to the foregoing instrument of writing, as parties thereto, this day appeared before me and acknowledged that they executed and delivered the same as their voluntary act and deed, for the uses and purposes therein contained. Given under my hand and notarial seal this the 24th day of January, 1880.

[L. S.]

S. J. BURNETT,

Notary Public, Johnson County, Mo.

This presents a question of more difficulty. Section 354, Revised Statutes 1879, provides that every general assignment by a debtor in trust for his creditors “shall be proved or acknowledged and certified and recorded in the same manner as is prescribed by law, in cases wherein real estate is conveyed.” Section 743 of the statute in relation to private corporations, (R. S. 1879,) declares that, “It shall be lawful for any corporation to convey lands by deed sealed with the seal of the corporation and signed by the president * * and such deed shall, when acknowledged by such officer to be the act of the corporation, or proved in the usual form prescribed for other conveyances of land, be recorded,” etc. In the City of Kansas v. Hannibal & St. Joseph R. R. Co., 77 Mo. 180, the granting clause of the deed was as follows: “Know all men by these presents, that the West Kansas Land Company, by Solomon Houck, president, and Theodore S. Case, Secretary, * * has granted” * *. The attestation clause was as follows: “In witness whereof we hereunto subscribe our names and affix our seals this, etc.”

[SEAL.]

SOLOMON HOUCK, President.

[SEAL.]

THEODORE S. CASE, Secretary.

[SEAL.]

W. K. LAND COMPANY.

[SEAL.]”

The certificate of acknowledgment was that Houck and Case “acknowledged that they executed and delivered the same as their voluntary act and deed for the purposes therein mentioned.” This court held the deed to be that of the company and the acknowledgment sufficient. In the case at bar the seal of the bank was affixed to the deed. The deed purports to be the deed of the bank. It is signed by the president and cashier, in pursuance of the order of the board of directors, the acknowledgment is the same as in the case above referred to, and upon the authority of that case must be held to convey the property embraced in its terms. Judge HOUGH and I dissented from the opinion of the court in that case, and speaking for myself I think that the acknowledgment of the deed in question does not meet the requirements of the statute. Judge HOUGH is also of that opinion.

These preliminary questions disposed of, we are now to consider whether the deed of assignment, by its terms, embraced unpaid stock for which no calls had been made; and second, if embraced by the terms, was it in the power of the bank to assign such demands?

3. ASSIGNMENT: what it passes.

It is conceded by counsel for appellant, that the language of the conveyance is broad enough to include unpaid stock for which no call had been made (if assignable) unless the scope of the language is limited by the schedule attached to the deed of assignment. The deed does not convey the property by schedule. No reference is made to it, and under such circumstances, the express language of the deed is not restricted in its meaning by what the schedule contains.

4. _____: liability of stockholders may be assigned.

Had the bank power to assign its claim upon a stockholder for unpaid stock, for which no call had been made by the directors? A very able argument is made in Mr. Bland's brief in support of the proposition that such credits form no part of the general assets of a corporation, and are not properly the subjects of assignment.

Ex parte Stanley, 4 DeG. J. & S. 407, cited and relied upon by him as a direct authority, turned upon the construction of a deed of settlement, one clause of which provided that the board of directors might borrow any sum or sums of money for the use of the society on the security of its funds or property, and cause the funds or property on the security of which any sum or sums should be so borrowed or taken up, to be respectively...