Appeal
from superior court, Davidson county; JAMES H. MERRIMON
Judge.
MERRIMON
C.J.
The
complaint used as an affidavit in support of the motion for
the injunction in question is very voluminous, alleging facts
much in detail. It is sufficient for the present purpose to
state that it is alleged that the Silver Valley Mining
Company of Baltimore, a defendant in this action, was
incorporated and organized under the laws of the state of
Maryland in the year 1860, with a capital stock of
$1,000,000; that in August of that year it acquired certain
valuable mineral lands in this state; that in the latter part
of that year, and early in the year 1861, certain officers
and stockholders of this company, owning a majority of the
shares of its capital stock, fraudulently contriving and
intending to get and own the property of their company,
procured from the legislature
of this state a charter, and under it organized the present
defendant, appellant corporation, the Silver Valley Mining
Company, whose charter allowed the assessment of shares of
the capital stock, as the Baltimore Company did not; that in
the year 1861 a meeting of the stockholders of the latter
company was called, at which those owning a majority of the
capital stock were induced to accept the charter of the
present defendant, and to merge the Baltimore Company
therein, but the land in this state that is now in
controversy was not formally conveyed to the defendant until
the 24th day of June, 1882; that that company was organized
in the state of Maryland, and the organization was therefore
void. It does not appear when the plaintiff obtained his
certain shares of the capital stock of the Baltimore Company,
but he did so long after the alleged fraudulent organization
of the defendant company. It does not allege that himself, or
those from whom he purchased his shares of stock, ever in any
way took legal, or indeed any, steps to arrest the fraudulent
acts and conduct complained of in this state, or in the state
of Maryland.
The
plaintiff is not the legal owner of the stock he holds. He
holds certificates of stock indorsed to him, but certificates
have not been issued to him. It is alleged that the Baltimore
Company is the proper, lawful owner of the mineral lands
mentioned, and also of the judgment presently to be
mentioned; that the defendant corporation and the other
defendants are about to sell the land, collect the judgment,
and fraudulently devote the whole to their own use. It is
further alleged as follows:
"(15)
The plaintiff further alleges that the said Silver Valley
Mining Company has lately recovered, by the judgment of
this court, the sum of $18,000, with interest from the 10th
day of January, 1881, against a certain corporation
incorporated under the laws of North Carolina by the name
of the 'Baltimore Gold & Silver Mining & Smelting
Company,' upon which a sum of money has been paid,
leaving still due the sum of $17,743.50. That said judgment
was obtained upon the ground of fraud by the said Baltimore
Gold & Silver Mining & Smelting Company on the said Silver
Valley Mining Company in procuring the property, stock and
assets of said Silver Valley Mining Company, and converting
the same to its use, to the amount of said judgment, as
appears by the record of said judgment in this court, to
which reference is prayed to be had, as if the same were
herein recited at large. That said Silver Valley Mining
Company was affected by said fraud of the defendant in said
judgment, and entitled to and did recover in respect
thereof only by reason of its supposed ownership and
possession of the said property and assets referred to in
the said proceedings of said judgment, and that said
judgment was obtained by it as compensation for injury done
by said defendant in said judgment to the said property and
assets. But the plaintiff alleges that said property and
assets to which said injury was done were the property and
assets of the Silver Valley Mining Company of Baltimore,
and that said Silver Valley Mining Company of North
Carolina obtained possession of said property and assets in
pursuance of a fraudulent conspiracy among, and by means of
fraudulent breaches of trust on the part of, the directors
of the Silver Valley Mining Company of Baltimore, or of a
majority of them, who were the same persons as the majority
of the directors of the North Carolina Company, and by
means of fraudulent transactions on the part of the
majority of the stockholders of said Silver Valley Mining
Company of Baltimore, of all which fraudulent conspiring,
breaches of trust, and fraudulent transactions the Silver
Valley Mining Company of North Carolina had full notice;
and the plaintiff is advised and alleges that the said
Silver Valley Mining Company of Baltimore is entitled to
the said judgment in respect of the injury done by the said
defendant therein to its (the said company's) property
and assets, and that the said Silver Valley Mining Company
is bound in equity to hold the said judgment in trust for
the said Silver Valley Mining Company of Baltimore.
"(16)
The plaintiff further alleges that the said Thomas W. Hall,
Jr., S. Sutton Clayton, and Joseph Wilkins are the only
surviving directors of the Silver Valley Mining Company of
Baltimore; the said Talmadge and the said Harris having
long since departed this life, as aforesaid. That the said
Clayton and said Wilkins are the very persons who, as
directors of said company, have committed the acts
hereinbefore mentioned; and they refuse to take any steps
whatsoever with reference to such acts, or in any way to
remedy the wrongs hereinbefore complained of, and form a
majority of the board of directors of said company, and the
said Hall also refuses to take any steps in reference to
said acts.
"(17)
That the stockholders of said Silver Valley Mining Company
of Baltimore, who maintain the validity of said illegal
merger of the said company in the said Silver Valley Mining
Company of Baltimore, and of said acts hereinbefore
mentioned, hold a majority of the capital stock of the said
Silver Valley Mining Company of Baltimore, and have a
majority of votes at any general meeting of the
stockholders of said company, and in consequence of the
preponderating number of votes possessed by them, it is
impossible for the plaintiff, or any stockholders in his
situation, to take any steps within the said company to
remedy the acts and doings hereinbefore complained of; and
if such acts and doings be not remedied, and said Wilkins
and Clayton and Hall removed from their offices, and the
said Silver Valley Mining Company restrained from
interfering with or occupying the property and assets of
the said Silver Valley Mining Company of Baltimore will be
ruined, and the property of the plaintiff therein
destroyed.
"(18)
The plaintiff further alleges that the said Silver Valley
Mining Company has issued execution on its said judgment
for the collection of the sum of money due therein against
the defendant therein, the Baltimore Gold & Silver Mining & Smelting Company, and has caused said execution
to be levied on all the lands and property of the said
defendant in said judgment, and P. D. Leonard, Esq., the
sheriff of Davidson county, has, in consequence thereof,
publicly advertised the same lands to be sold upon the 6th
day of May, A. D. 1889, for cash, at the court-house door
in Lexington, in said county. And the plaintiff files
herewith, as a part of this complaint, marked
'Plaintiff's Exhibit No. 6,' a copy of a
handbill giving notice of said execution sale, issued by
said sheriff. And the plaintiff further alleges that said
Silver Valley Mining Company is insolvent, and that, if it
be permitted to collect said judgment by execution and sale
of said lands as aforesaid, the moneys realized thereby
will be applied by it to its own uses, and dissipated, and
will be wholly lost to the Silver Valley Mining Company of
Baltimore, which, as the plaintiff alleges, is the true
owner of said judgment; and the Silver Mining Company well
knows that said Silver Valley Mining Company of Baltimore
is entitled to said judgment, and with the connivance of
and in collusion with said Wilkins and Clayton, who are a
majority, as aforesaid, of the directors of the said Silver
Valley Mining Company of Baltimore, and who refuse, as
aforesaid, to take any steps to remedy the illegal acts
hereinbefore mentioned, and secure the rights of the
stockholders of said company, has caused said execution to
be issued, and levied on all the lands of the defendant in
said judgment, and
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