Pullis v. Pullis Bros. Iron Co.

• Decision Date: 04 June 1900
• Citation: 57 S.W. 1095,157 Mo. 565
• Parties: PULLIS et al. v. PULLIS BROS. IRON CO. et al.
• Court: Missouri Supreme Court

57 S.W. 1095

157 Mo. 565

PULLIS et al. v. PULLIS BROS. IRON CO. et al.

Supreme Court of Missouri.

June 4, 1900.

RECEIVERS — APPOINTMENT — JUSTIFICATION — DEED OF TRUST — ACCEPTANCE — CORPORATION — INSOLVENCY — PREFERENTIAL DEED OF TRUST — VALIDITY — DEED BY CORPORATION — SEAL — NECESSITY — JUDGMENT OF JUSTICE COURT — APPEAL — DISMISSAL — EFFECT — TRANSCRIPT — FILING BEFORE DISMISSAL OF APPEAL — EFFECT — REVIVAL OF LIEN — EXECUTION — ISSUANCE — COLLATERAL ATTACK — SALE UNDER TRUST DEED — PROPERTY IN BULK — VALIDITY.

1. Where a corporation had executed a trust deed in favor of certain preferred creditors, and the trustee had taken possession of the property, a petition which alleged that the corporation was defunct, and without officials to hold the property, and that the trustee, after a partial destruction of the property by a cyclone, had spent several thousand dollars in adapting it to other purposes, and that there was danger that the property would be sold for taxes, and of a loss from the failure to keep it insured, does not state facts sufficient to warrant the appointment of a receiver, since there was no claim that the trustee in the deed of trust or the beneficiaries were insolvent, or that the trust deed was fraudulent, or that there was any permitted or contemplated waste, or that the property, by reason of the changes made in its construction, was any less valuable.

2. Where a trustee accepted a deed of trust, and entered into immediate possession of the property, the contention that the beneficiaries had never accepted the deed was not well founded, since the possession of the trustee inured to their benefit.

3. Where the execution of a deed of trust in favor of certain preferred creditors of a corporation was ordered by the vote of all the corporate directors except one, whose vote was doubtful, it cannot be claimed that the deed was not executed by the authority of the board of directors.

4. The directors of an insolvent corporation, if they act in good faith, have the right to execute a preferential deed of trust to secure bona fide debts of the corporation.

5. Under Rev. St. 1889, § 2508, giving every private corporation power to make and use a common seal; and section 2399, authorizing any private corporation to convey real estate by deed sealed by the common seal of the corporation, etc.; and section 2514, making the same requirement; and Act 1883, p. 20, requiring the officer acknowledging a deed executed by a corporation to state that the seal affixed to the deed is the corporate seal of such corporation, etc., but, in case a corporation has no corporate seal, to omit such words, and to add in place thereof that such corporation has no seal, — a deed executed by the directors of a corporation without a seal attached conveys a good title where the corporation had no seal; since section 2508, Rev. St. 1889, is not mandatory, and the act of 1883 does away with the necessity of the corporate seal required by sections 2399 and 2514 in all cases where the corporation has no seal.

6. Under Rev. St. 1889, § 6339, requiring a case appealed from a justice of the peace to be tried de novo in the circuit court; and section 6344, declaring that if notice is not given of such an appeal to the appellee before the second term after the appeal is taken the judgment shall be affirmed or the appeal dismissed, at the option of the appellee, — where such an appeal was dismissed, a sheriff's deed executed in pursuance of a sale of defendant's property to satisfy the judgment appealed from is not void, on the ground that the appeal vacated the judgment, since the dismissal of the appeal left the judgment in full force and effect.

7. Under Rev. St. 1889, § 6286, giving any person in whose favor a judgment has been rendered in a justice court the right to file a certified transcript of such judgment in the office of the circuit clerk of the same county; and section 6287, which makes such judgment a lien on the real estate of the defendant from the time of filing the transcript, — where a judgment was obtained on March 20, 1896, and an appeal was taken to the circuit court on the same day, which was dismissed on February 24, 1897, transcripts of the judgment filed in the circuit clerk's office on March 26, 1896, were of no force or effect until the appeal was dismissed, since the statute applies only to final judgments, from which no appeal has been taken.

8. Under Rev. St. 1889, § 6012, providing that the lien of a judgment on the real estate of the defendant shall commence on the day of the rendition of the judgment, and shall continue for three years; and section 6013, giving the plaintiff the right at any time within ten years to sue out a scire facias to revive such a judgment and lien; and section 6015, declaring that if a scire facias is issued to revive a judgment and lien before the expiration of the lien, and a judgment of revival is afterwards rendered, it shall have precedence over all intermediate liens, — a lien obtained by filing transcripts of a judgment of a justice in the circuit court on February 24, 1897, which was revived, is superior to the lien of a judgment of the circuit court rendered May 24, 1896, which was not enforced or revived within three years.

9. The question whether an execution was issued to the constable of a township other than that in which the defendant resided cannot be raised in a collateral suit.

10. Where the only party who demanded that property offered for sale under a deed of trust should be sold separately had become ineligible as a bidder because he had purchased it at a former sale, and refused to pay the purchase price, and the property had always been treated as a single plant, a sale in bulk was proper.

In banc. Appeal from St. Louis circuit court; James E. Withrow, Judge.

Suit by Cora B. Pullis and others against the Pullis Bros. Iron Company and others to set aside conveyances, and to have the property distributed ratably among creditors, and for an accounting, and to have a receiver appointed. Defendants appeal from an order appointing a receiver pendente lite. Order reversed.

This is an appeal, under the act of 1895 (Acts 1895, p. 91), from an order of the circuit court of the city of St. Louis refusing to revoke an interlocutory order appointing a receiver. The vital matters in controversy can be more readily grasped by a chronological statement of the facts, pleadings, and proceedings.

Prior to and on March 25, 1896, the Pullis Bros. Iron Company was a Missouri corporation, engaged in the manufacture of iron for architectural purposes. It owned a single plant, on the corner of Eighth and Hickory streets, composed of a main building, located on and covering the whole of lots numbered 9 to 19, inclusive, in block numbered 1, of Park's addition to the city of St. Louis, and having a front of 268 feet on Eighth street, by an uniform depth eastwardly of 120 feet to an alley, and a smaller building, attached to and connected therewith, the forming a part thereof, which was used as a pattern shop, storage room, and drafting room, and which was located upon and covered the whole of lots 7 and 4, and 4 feet off of the southern part of lot No. 8, in block No. 1, of Park's addition, and which had a front of 24 feet on the west side of Seventh street, by a depth westwardly of 120 feet to an alley. In other words, the main building fronted on the east side of Eighth street, while the smaller building fronted on the west side of Seventh street, and each had a depth to the alley that separated them.

On the day aforesaid the officers of the company were Thomas R. Pullis (the husband of the plaintiff Cora B. Pullis), president; Christen A. Pullis (one of the defendants), secretary; Thomas R. Pullis, Christen A. Pullis, Augustus Pullis, Jr., William C. Mueller, and Rudolph Rodke, directors; and these directors, together with Mrs. A. E. Pullis, constituted all of the stockholders of the company. The company was heavily in debt. It owed the State Bank of St. Louis $23,700, and Mrs. Harriett Pullis was indorser therefor; it owed Mrs. Cora B. Pullis, the plaintiff, $6,073.33; it owed Mrs. C. A. Pullis $9,667.19; it owed Mrs. Anne Hemphill (who was then dead) $4,000; and it owed other persons about $36,000, among whom was the Tennessee Coal, Iron & Railroad Company, whose claim amounted to $713.32. On or about March 20, 1896, the last-named company obtained two judgments against the defendant company, aggregating said sum, before a justice of the peace, and on the same day the judgment was rendered the defendant company took an appeal to the circuit court, but on the 23d of March, 1896, that company filed transcripts of said two judgments of said justice of the peace in the office of the clerk of the circuit court. This was the status on March 25, 1896, when the directors of the defendant company had a meeting. All of the directors were present, and Mrs. A. E. Pullis, the only other stockholder of the company who was not a member of the board of directors, was represented at the meeting by William Sommerville, who had full power and authority to act for her. It was decided by the directors and stockholders at that meeting (as it had been previously decided at a meeting held on the 21st of March, 1896) to prefer the indebtedness to the State Bank of St. Louis, Mrs. Cora B. Pullis, Mrs. C. A. Pullis, and Mrs. Hemphill, and accordingly a deed of trust was authorized by the directors and stockholders (Thomas R. Pullis alone dissenting, as to which there is much doubt, however) to be made, and it was so properly made, conveying all the property before described, together with the machinery, etc., in the plant, to Christen A. Pullis as trustee for said preferred creditors, and the deed of trust was duly recorded the same day, at 4:28 p. m., in the office of the recorder of deeds of the city of St. Louis. The deed of trust recites in its body, "said corporation...