Landis v. Saxton

• Citation: 105 Mo. 486,16 S.W. 912
• Parties: LANDIS v. SAXTON.
• Decision Date: 29 June 1891
• Court: Missouri Supreme Court

16 S.W. 912

105 Mo. 486

LANDIS v. SAXTON.

Supreme Court of Missouri, Division No. 1.

June 29, 1891.

LIMITATIONS — TRUSTEES — CORPORATIONS — DISSOLUTION.

Under Rev. St. Mo. 1889, § 2513, providing that, on the dissolution of any corporation, the president, directors, or managers shall be trustees to wind up its affairs, and sue for debts, etc., a cause of action in favor of such trustees, and against one, the secretary, holding corporate funds, arises on the dissolution of the corporation, and the statute of limitations then begins to run against the trustees' right of action.

Appeal from circuit court, Buchanan county; O. M. SPENCER, Judge.

B. R. Vineyard and Huston & Parrish, for appellant. S. S. Brown, for respondent.

SHERWOOD, J.

This action was brought in 1887. By it plaintiff seeks to recover from the defendant, as the former secretary and treasurer of the St. Joseph Extension Company, organized in 1855, and which expired by the limitation of its charter in 1875, a certain sum of money alleged to have been received by him during his term of office as such secretary and treasurer, to-wit, the sum of $10,000. Plaintiff sues as the last surviving director, alleging that all the rest, president and members of the board of directors, are dead; that no settlement was ever had with defendant for the moneys received by him as aforesaid; and that he failed to account for the same, or to pay the same over to said corporation, during its existence, or to its trustees; and that it was the duty of defendant, as such secretary and treasurer, concerning the moneys he received in that capacity, "to hold and pay out [such moneys] only on the order of said corporation during its existence, or on the demand of its trustees after its dissolution," but that he retains and still has the same. Allegation is then made that plaintiff, as sole surviving member of the corporation, on the 30th day of July, 1887, made demand on defendant for the amount so received by him, which he refused to pay over, etc. The defendant successfully demurred to the petition, on the ground that the cause of action did not accrue within five years, and judgment was entered accordingly. This action is alleged to be based on section 2513, Rev. St. 1889, which provides as follows: "Upon the dissolution of any corporation already created, or which may hereafter be created, by the laws of this state, the president and directors or managers of the affairs of said corporation at the time of its dissolution, by whatever name they may be known in law, shall be trustees of such corporation, with full powers to settle the affairs, collect the outstanding debts, and divide the moneys and other property among the stockholders, after paying the debts due and owing by such corporation at the time of its dissolution, as far as such money and property will enable them; to sue for and recover such debts and property by the name of the trustees of such corporation, describing it by its corporate name, and may be sued by the same; and such trustees shall be jointly and severally responsible to the creditors and stockholders of such corporation to the extent of its property and effects that shall have come into their hands."

1. Was the action of the plaintiff barred by the statute? The trusts against which the statute will not run "are those technical and continuing trusts which are not at all cognizable at law, but fall within the proper, peculiar, and exclusive jurisdiction" of a court of equity; but other trusts, which are the ground of an action at law, are open to the operation of the statute. Kane v. Bloodgood, 7 Johns. Ch. 90. The kind of trusts which fall within the exclusive jurisdiction of a court of equity are direct trusts created by deed or will, or by appointment of law, e. g., executorships or administrations; but cases of constructive or implied trusts, which result from partnerships, agencies, and the like, are subject to the operation of the statute. Farnam v. Brooks, 9 Pick. 212. The crucial test in all such cases is, is there a remedy at law? If there is, that is a conclusive answer to the claim that a technical trust, as aforesaid, has been created. Murray v. Coster, 20 Johns. loc. cit. 583. Referring to the cases in 7 and 20 Johns. supra, with approval, Judge STORY says, in Robinson v. Hook, 4 Mason, loc. cit. 152: "But as to cases of merely constructive trusts, created by courts of equity, or cases which, in a sense, are treated for some purposes as implied trusts, to which, however, legal remedies...