Lewis' Adm'r v. Glenn

• Decision Date: 05 June 1888
• Citation: 6 S.E. 866,84 Va. 947
• Parties: Lewis' Adm'r v. Glenn.
• Court: Virginia Supreme Court

6 S.E. 866

(84 Va. 947)

Lewis' Adm'r

v.Glenn.

Supreme Court of Appeals of Virginia.

June 5, 1888.

1. Corporation—Powers—Trust Deed.

A deed of trust executed in Virginia by the president, under authority of a resolution of the directors of a corporation created under the laws of Virginia, for the purpose of transacting an express and transportation business, and domiciled in said state, conveying all its property to trustees for the benefit of creditors, reserving the enjoyment of the property, under the title of the trustees, from its date, September 20th, until November 1st following, unless the trustees should be required by some creditor secured to take possession, and requiring the trustees, out of the proceeds of the property, to pay all debts that might become due from the company to its officers and agents, and all amounts of indebtedness the company might incur to railroad companies for transportation, over and above the net receipts for such transportation for a like period, and further reserving to the grantor absolutely all tolls and compensation for the transportation of express matter not yet delivered to the consignees nor transported under existing contracts, is to be construed by the laws of Virginia, and, so construed, is valid.

2. Same—Construction of Deed.

Such deed, including "all the estate, property, rights, and credits" of the grantor, "of every kind and wherever situated, " enumerating many by name, followed with, "all moneys payable to the company, whether on calls or assessments on stock of the company or otherwise, " passed the title to the unpaid subscriptions to the capital stock of said company to said trustees, with power to collect and receive the same, when authoritatively called for, to the extent of the call made.

3. Same—Stockholders—Action for Unpaid Subscription—Parties—Assignee.

A corporation made an assignment to trustees, including therein unpaid subscriptions, and provided that future assessments should be payable directly to the trustees. A decree, to which the stockholders were not individually parties, made an assessment on said stockholders, removed the original trustees, substituting in their stead plaintiff, to whom it gave the authority to collect such assessment by suit or otherwise. Held, under Code Va. 1873, c. 141, § 17, which authorizes an as signee of " any bond, note, or writing not negotiable " to maintain an action thereonin his own name, that plaintiff could sue thereon in his own name; said decree being valid and binding on the stockholders, who were sufficiently represented by the corporation being a defendant to the suit in which said decree was rendered.

4. Same.

The president of a corporation, in accordance with a resolution of the board of directors, having executed a deed assigning to trustees for the benefit of creditors unpaid subscriptions to its capital stock, giving such trustees power to collect the same, and the stockholders at a general meeting thereafter having approved the execution of such deed by a resolution commanding the board of directors to make such additional calls for unpaid subscriptions as would be necessary to enable the trustees to pay the debts of the corporation, the successor of such trustees may, by reason thereof, sue a stockholder for such a call in his own name, whether such an assignment was within said statute (Code Va. 1878, c. 141, § 17) or not.

5. Same—Evidence.

In an action by a trustee of a corporation to collect an assessment against the administrator of a stockholder upon the unpaid stock of his intestate, it appeared that the subscription had been made many years before by intestate's brother, acting as her agent. There was some evidence to show that he had been acting as her agent in business matters, and her name appeared on the books as a stockholder, and as having paid three assessments. Her estate, which was large, consisted principally of stocks; but the stock in this company, which had long since ceased to do business, was not inventoried as part thereof. Held sufficient evidence of deceased having been a stockholder.

6. Same.

In an action to collect an assessment on unpaid stock, the books of a corporation being identified as such by one of the trustees in an assignment made by the company, and by him proved before a commissioner taking an account under such assignment, in a chancery suit to which the corporation was a party, and it being shown that the books offered were the same books as those before said commissioner, they were properly admitted as evidence.

7. Same—Statute of Limitations.

Under Code Va. 1873, c. 57, § 3, providing that, upon every subscription for shares in any joint-stock company, (other than a bank of circulation,) there shall be paid upon each share two dollars at the time of subscribing, and the residue thereof as required by the president and directors, the statute of limitations begins to run against an action for an unpaid assessment upon such shares from the time such assessment is made.

8. Same—Actions—Service of Process.

Under Code Va. 1873, c. 166, § 7, providing that service of process upon a private corporation created by the laws of Virginia (other than a bank) shall be on its president or other chief officer, cashier, * * * or any of its directors, a return upon a summons in a chancery cause, made by the sheriff, showing proper service upon one of the directors and the cashier of such a corporation, is sufficient, although such officers disclaim, in their answers, the right to answer officially, but recognize therein the service of the summons.

9. Trusts—Equity Jurisdiction—Substitution of Trustee.

A court of chancery has power, in Virginia, for cause, to remove trustees in a deed of trust to secure creditors, and to substitute others in their place, both by virtue of the jurisdiction of such court over the subject of trusts, and under Code Va. 1873, c. 155, § 6, as amended by Acts Va. 1874, pp. 224, 225, and Id. c. 174, § 8, as amended by Acts Va. 1874, 1875, p. 423, providing that in case of death, failure to act, etc., of a trustee in a deed of trust, a court of equity in the county in which such deed is or might have been recorded, may appoint a trustee in his place, and in such case no conveyance to the substituted trustee is necessary.

Error to corporation court of Norfolk.

Assumpsit by John Glenn, trustee of the National Express & Transportation Company, under a deed of trust executed by said company to trustees, to whom said Glenn was successor, against John N. Green, administrator de bonis non, cum testamento annexo of Frances M. Lewis, deceased, to recover an assessment of 30 per cent, on the capital stock of said company, subscribed to by the decedent. Verdict and judgment for plaintiff, and defendant brings error. Code Va. 1873, c. 155, § 6, as amended by Acts Va. 1874, pp. 224, 225, and Id. c. 174, § 8, as amended by Acts Va. 1874, 1875, p. 423, provide that in case of death, failure to act, etc., of a trustee in a deed of trust, a court of equity in the county in which such deed is or might have been recorded may appoint a trustee in his place. Code Va. c. 166, § 7, provides that service of process upon a private corporation created by the laws of Virginia, other thana bank, shall be on its president, or other chief officer, cashier, * * * or any of its directors.

John Howard, for appellee.

Richardson, J. This was an action of trespass on the case in assumpsit, brought in the corporation court of the city of Norfolk by John Glenn, suing in his own name, as substituted trustee in a certain trust deed hereinafter to be referred to, against the plaintiff in error, Lewis' administrator, etc. The object of the suit was to recover of the defendant, (plaintiff in error,) out of the estate of Frances M. Lewis, deceased, remaining unadministered in the hands of her executor and sole devisee, Conway Whittle, at the time of his death, — the said defendant (plaintiff in error) being the administrator d. b. n. a, t. a. upon the death of Conway Whittle, who was the executor of said Frances M. Lewis, —a judicial call of 30 per cent., and interest thereon, made by the decree of the chancery court of the city of Richmond on the 14th day of December, 1880, in the chancery cause then therein pending of Glenn's Adm'r v. The National Express & Transportation Company, a joint-stock incorporated company chartered and organized under the laws of the state of Virginia. This company, by an act passed on the 12th day of December, 1865, was chartered as a joint-stock company, its capital stock to be $5,000, 000, to be divided in shares of $100 each, with the privilege of increasing its capital stock to a sum not exceeding $10,000, 000; and the company was authorized to commence business as soon as one-third of the capital stock was subscribed, and $100,-000 of same was paid up; the chief office of the company to be kept at Richmond, Va. In connection with its chartered privilege of engaging in the express and general transportation business, this company proclaimed, it seems, the patriotic purpose of giving employment alike to disabled Union and Confederate officers and soldiers. It was thus national in name and in its aims. Its stock was eagerly sought after, and 40, 044 shares were subscribed for, and, with bright prospects of a prosperous career, it went into business. In about one year, however, the company became embarrassed, and on the 20th day of September, 1866, in obedience to a previous resolution and order of the board of directors, the president of the company executed a deed of trust to three trustees for the benefit of the creditors of the company. At this time, of the over $4,000, 000 of capital stock subscribed, the assessments and calls made amounted to only 20 per cent. The company had received in cash $534,748, and in good notes $54,436, making a total of $589,184 actually realized; and at which time the company's indebtedness amounted to only some...