Hambleton v. Glenn

• Decision Date: 14 March 1889
• Citation: 9 S.E. 129,85 Va. 901
• Court: Virginia Supreme Court
• Parties: Hambleton et al. v. Glenn et al.

9 S.E. 129

(85 Va. 901)

Hambleton et al.

v.Glenn et al.

Supreme Court of Appeals of Virginia.

March 14, 1889.

Corporation—Dissolution — Parties—Subscription—Assignment—Equity.

1. The stockholders of an insolvent corporation are not necessary parties to a bill by a creditor against the corporation, its president and directors, and the trustees to whom it has conveyed all its property for the benefit of creditors, filed to en force collection of the unpaid subscriptions to the capital stock, they being represented by the corporation and its officers; as under Code Va. 1873, c. 56, § 31, a corporation, though dissolved, or though its powers may have expired, may be sued to enforce its liabilities.

2. Under Code Va. 1873, c. 57, § 26, an assignor of shares of stock is still liable for unpaid subscriptions, whether the installments accrue before or after the assignment.

3. The deed of trust providing that the unpaid subscriptions shall be payable to the trustee, the right to collect the same passes thereby, and they may be enforced in a suit for that purpose, brought by a creditor.

4. Whether the right to collect the subscriptions passes by the deed of trust or not, the right of the corporation to them passes to creditors under said chapter 57, § 23, which requires stockholders to pay their subscriptions upon call by the president and directors, and provides that they may be recovered by action, warrant, or motion.

5. Though the debts secured by the deed of trust are barred by limitation, they are not thereby extinguished, and the property of the corporation, including the unpaid subscriptions, having been conveyed to secure said debts, equity will aid in en-forcing their payment.

Appeal from circuit court, Henrico county.

Bill by W. W. Glenn, a creditor of the National Express & Transportation Company, who sues as well for himself as all other creditors, against said company, its president and directors, and the trustees, under a deed of trust for the benefit of creditors, executed by said corporation. The object of the bill was to assess and collect the unpaid subscriptions to the capital stock of said cor-poration, and to apply the avails to its debts. The deed of trust conveyed all the property of the company of whatever kind, including by name the unpaid subscriptions, and made the latter payable to the trustees. Hambleton and others, stockholders, filed a petition asking to be made parties to the cause, and that the decrees rendered therein might be reheard. From a decree denying their petition defendants appeal. For a fuller statement of the facts, see 6 S. E. Rep. 806, 866, and many other cases there cited, involving the same matters.

Leigh R. Page and Pegram & Stringfel-low, for appellants. Chas. Marshall and John Howard, for appellees.

Lacy, J. This is an appeal from a decree of the circuit court of Henrico county, rendered on the 22d day of December, 1887, in the suit of Glenn's Adm'r, etc., v. National Exp. & Transp. Co. The said suit is a suit by the creditors of the said National Express & Transportation Company, seeking the payment of their debts; the said company having conveyed its property of every sort to trustees for this purpose. The suit having progcessed in the said court to the point where it was deemed necessary to compel the payment of 80 per cent, of its capital stock, an assessment was made for 30, then 50, per cent., and its payment demanded; which being neglected, suit was instituted against the said appellants in the court of common pleas in Baltimore city, state of Maryland, the place of their residence, for the said stock assessments. They appeared in the circuit court of Henrico county, in this state, where this suit was pending, and on the Sunday of November, 1887, presented their petition, and asked leave of the court to file the same in the said suit of Glenn v. National Exp. & Transp. Co.

The history of this suit of Glenn v. National Exp. & Transp. Co. is to be found so fully set forth in the opinion of Judge Richardson, speaking for a majority of this court, in the case of Lewis v. Glenn, which is reported in 6 S. E. Rep. 866, that it is not deemed necessary to go again so fully into a statement of that cause. See, also, opinion of Hinton, J., in Vanderwerken v. Glenn, Id. 806. That was a suit at law upon a stock assessment. This is upon the motion to file a petition by the appellants to be made parties in the said chancery suit. In their said petition they claim that while they were stockholders at one time, by assignment of the said assessed stock from the original subscribers, they had before decree in the said cause assigned the said stock to others in 1866, and as assignors thereof had been sued for an assessment thereon, and were so interested in the suit of Glenn v. National Exp. & Transp. Co.; that they were not served with any process in the suit, were not made parties defendant, and had no notice of the pendency of the proceedings therein, until after the rendition in the cause of the de cree of December 14, 1880, by the chancery court of Richmond, in which court the said cause was then pending; and that by the authority of the said decree they had been sued by Glenn, trustee, for an assessment of $30 on every share of the said stock, making an aggregate of $6,300; and that since the removal of the said cause to the said circuit court of Henrico by the decree therein of March 26, 1886, there had been a further assessment of $50 on each share of the said stock, which decree had authorized the said Glenn, trustee, to collect the same of them.

They presented their petition, and prayed that the said cause might be reheard, and the manifest injustice of the said decrees corrected as to them, and as to all others similarly interested, who might unite with the petitioners under the proper orders of the court;...