Forrester v. Boston & M. Consol. Copper & Silver Min. Co.

• Decision Date: 23 January 1904
• Citation: 74 P. 1088,29 Mont. 397
• Parties: FORRESTER et al. v. BOSTON & M. CONSOL. COPPER & SILVER MIN. CO. OF MONTANA et al.
• Court: Montana Supreme Court

74 P. 1088

29 Mont. 397

FORRESTER et al. v. BOSTON & M. CONSOL. COPPER & SILVER MIN. CO. OF MONTANA et al.

Supreme Court of Montana

January 23, 1904

Appeal from District Court, Silver Bow County; Wm. Clancy, Judge.

Bill by James Forrester and another against the Boston & Montana Consolidated Copper & Silver Mining Company of Montana and others to restrain and cancel a transfer of all the stock of defendant corporation. From a decree declaring the transfer null and void, and granting the plaintiffs attorney's fees, defendants appeal. Affirmed.

Forbis & Evans, W. W. Dixon, and Ransom Cooper, for appellants.

John J McHatton, C. R. Leonard, Cullen, Day & Cullen, J. B Clayberg, and R. B. Smith, for respondents.

HOLLOWAY J.

This action was commenced June 4, 1898, by Forrester and MacGinniss, plaintiffs, against the Boston & Montana Consolidated Copper & Silver Mining Company of Montana, the Boston & Montana Consolidated Copper & Silver Mining Company of New York, the board of directors of the Montana Company and certain stockholders and holders of proxies, to restrain the transfer of the property of the Montana Company to the New York Company, to secure the appointment of a receiver for the Montana Company, and for other relief. A full statement of the facts in this case is contained in the opinion heretofore rendered by this court (Forrester & MacGinniss v. B. & M. C. C. & S. M. Co., 21 Mont. 544, 55 P. 229, 353), to which reference is made. A temporary injunction was issued, and afterwards a receiver appointed. After the appeal from the order granting the injunction had been decided against the defendants, and they had made numerous unsuccessful attempts to prevent the property falling into the hands of the receiver on April 9, 1899, they filed in the district court their written consent that a decree might be entered enjoining the transfer of the property of the Montana Company to the New York Company, enjoining the voting of the stock in favor of any such transfer, enjoining the New York Company from operating the property in any manner, and requiring that company to redeliver to the Montana Company the possession of the property in controversy, and adjudging the acts of the directors and officers of the Montana Company, so far as they related to a sale or attempted sale of the property to the New York Company, to be null and void, and requiring the New York Company to execute proper conveyances of the property to the Montana Company, requiring the New York Company to account for the property while in its possession, and providing that plaintiffs might recover their costs. This offer was declined by the plaintiffs, and, a motion for the discharge of the receiver having been made and denied, an appeal was taken to this court. The order denying that motion was reversed (Forrester & MacGinniss v. B. & M. C. C. & S. M. Co., 22 Mont. 430, 56 Pac. 868), and the lower court was directed to enter a judgment and decree in conformity with the offer made by the defendants, and thereupon to discharge the receiver. On May 4, 1901, the court entered a judgment and decree containing the provisions stipulated for by the defendants, and further allowing the plaintiffs an attorney fee of $50,000, which is adjudged against the Montana Company. The decree also contains the following provision: "It is further adjudged and decreed that the acts of the directors and officers of the defendant mining company, Boston & Montana Consolidated Copper & Silver Mining Company of Montana, so far as they relate to the sale or conveyance, or the attempt to sell or convey, the property of the said mining company to the New York Company, be, and the same are hereby, declared, adjudged, and decreed to have been and to be null and void, and to have conveyed no right or title to the New York Company in or to any of the property of the Montana Company, and that any and all deeds or instruments of conveyance, and particularly the deed of conveyance heretofore given to the said New York Company by the officers and directors of the Montana Company, and executed in its name, for all the property and rights mentioned and described in Exhibit A of the complaint herein, which deed is recorded on page 173 of Book 29 of Deed Records of Silver Bow county, Montana, be, and the same is hereby, declared, adjudged, and decreed to have been and to be null and void, and to have conveyed no title or right, and are hereby canceled and set aside; and the said New York Company is forever enjoined from asserting any claim under said deed or deeds to said property. It is hereby adjudged and decreed that the said defendant the said New York Company has no right, title, or interest in or to any of the property of the Montana Company heretofore or at any time conveyed or attempted to be conveyed by said Montana Company to said New York Company, and that it never had or acquired any right, title, or interest therein." From this judgment and the order allowing attorney's fee the defendants appealed.

1. Appellants contend that the judgment is unauthorized, particularly with reference to that portion quoted above. The specific objection made is that the judgment decrees the transfer or attempted transfer by the Montana Company to the New York Company to have been null and void, and likewise decrees the deed executed by the officers of the Montana Company to the New York Company to have been null and void, and that it never transferred any right or title to the New York Company. Appellants contend that the court should have gone no further than to declare such acts voidable. If the transfer or attempted transfer by the Montana Company to the New York Company and the deed evidencing that transfer were in fact null and void, then they conveyed no right or title to the New York Company. A void transfer is, in effect, no transfer. A void deed is, in effect, no deed. Such a deed is a nullity ab initio. However, discussion of the question is foreclosed by the offer of appellants and the former decision of this court (Forrester v. B. & M. C. C. & S. M. Co., 21 Mont. 544, 55 P. 229, 353, above). where this cause was fully considered. In disposing of it this court said: "Holding, as we do, that the proposed transfer is ultra vires the corporation, and therefore void, consideration of the question whether the transaction would, if accomplished, result in a consolidation or merger of the Montana Company with the New York Company, is unnecessary." And this view finds support in the following authorities: McShane v. Carter, 80 Cal. 310, 22 P. 178; Pekin M. Co. v. Kennedy, 81 Cal. 356, 22 P. 679; McCutcheon v. Merz Capsule Co., 71 F. 787, 19 C. C. A. 108, 31 L. R. A. 415; Cent. Transportation Co. v. Pullman's Palace Car Co., 139 U.S. 24, 11 S.Ct. 478, 35 L.Ed. 55; Jacksonville, M. P. Ry. & Nav. Co. v. Hooper, 160 U.S. 514, 16 S.Ct. 379, 40 L.Ed. 515; Cal. Bank v. Kennedy, 167 U.S. 362, 17 S.Ct. 831, 42 L.Ed. 198. It is true that in Boston & Montana C. C. & S. M. Co. v. M. O. P. Co. (C. C.) 89 F. 529, Judge De Haven held that the attempted transfer by the Montana Company to the New York Company was only voidable, and not void; but we think that decision is in conflict with the great weight of authority, and we prefer to follow the former decision of our own court.

As stated above, the appellants made an offer in writing that judgment might be entered in favor of Forrester and MacGinniss, and this court directed the trial court to enter judgment in conformity with the same. Upon this particular question the appellants' offer contains these provisions which they proposed should be incorporated in the judgment, viz.: "Also adjudging that the acts of the directors and officers of the Montana Company, so far as relate to the sale or conveyance, or the attempt to sell or convey, the property of the said Montana Company to the said New York Company, be declared null and void, and that the deed of conveyance heretofore given to the said New York Company by the officers and directors of the said Montana Company, and executed in its name, for all the property and rights mentioned or described in Exhibit A of the complaint herein, which deed is recorded on page 175 of Book No. 29 of Deeds Records of Silver Bow county, Montana, be declared null and canceled; and that the said New York Company be forever enjoined from asserting any claim under said deed to said property; also that said New York Company be declared to have no right, title, or interest in or to any of the property of the Montana Company heretofore at any time conveyed or attempted to be conveyed by said Montana Company to said New York Company." The terms "null" and "void" are used interchangeably, and are defined as follows: Null: "Of no legal force or effect; void; as, our agreement is null." Standard Dictionary. Void: "Having no legal force; entirely null; incapable of confirmation or ratification." Id. Null: "Of no legal or binding force or validity; of no efficacy; invalid; void; nugatory; useless; of no account or significance." Webster's Dictionary. Void: "Of no legal force or effect whatsoever; null, and incapable of confirmation or ratification." Id. Null: "Void; of no legal or binding force or validity; of no efficacy; invalid." Century Dictionary. Void: "Specifically, in law, without legal efficacy; incapable of being enforced by law; having no legal or binding force; null; not effectual to bind parties, or to convey or support a right." Id. We are unable to perceive the difference, in legal effect, between the offer and the decree, and are of the opinion that in this regard the lower court followed the directions given by this court, and that as to this portion of the judgment it was entered by consent, and appellants will not be heard...