Ballou v. United States Flour Milling Co.

59 A. 331, 67 N.J. Eq. 188, 1 Robb. 188, 1904 N.J. Ch. LEXIS 51

• Court: New Jersey Court of Chancery
• Decided: July 29, 1904
• Status: Published

Opinion

Pitney, V. C.

My reading of the petition does not enable me to determine ■whether the'assets which accrued to the receivers in the several foreign jurisdictions are still within the practical control of those jurisdictions, so that the receivers cannot dispose of them without the several orders of those courts, or whether they are now within the absolute control of those receivers, subject only to the order and control of this court.

If the former is the true situation, then it seems to me that the question, so elaborately argued by counsel for the receivers, is, for present purposes, merely academic, and the present proceedings useless.

Manifestly, until the receivers are at liberty to follow the instructions of this court in the matter submitted, it is useless to give those instructions.

But, since that point was not taken by the attorney-general, I shall, very briefly, consider the question argued, and I do this simply because it does not seem, hitherto, to have been presented to or considered by any of the courts of this state in their dealings with insolvent corporations.

. The case of Crews v. United States Car Co., 57 N. J. Eq. (12 Dick.) 367, and 60 N. J. Eq. (15 Dick.) 514, seems to be on all fours with, this case, but the question now presented was not discussed, either by the chancellor, in this court, nor by the court of errors and appeals, in its review and reversal of liis decree in that cause.

I shall abbreviate the argument and mention sonic of the eases cited as authorities on behalf of the petitioners:

1. That this state has, independent of statutory provision, no right of preference over other creditors for the payment of taxes due to it. This is especially true of a tax not a tax upon property. Citing Freeholders v. Bank, 29 N. J. Eq. (2 Stew.) 268 and 30 N. J. Eq. (3 Stew.) 311.

2. The statutory provision for preference can have no extraterritorial force. If it could be held that the annual license fee here claimed is a tax proper, and a lien upon property within the state, that lien does not extend to and rest upon property beyond its limits.

3. The fund out of which the state claims the preference in this case is composed wholly of the proceeds of property and operations which never had any actual or legal situs in the State of New Jersey, but the situs of which was and is entirely in foreign jurisdictions, and such fund was never actually brought into the State of New Jersey by the receivers.

4. The receivers, only one of whom is a resident of New Jersey, came into possession of said property and funds by virtue of their appointment as such receivers by the several courts having territorial jurisdiction of the property and funds, upon suits brought in such courts for such purpose.

The receivers were not content to attempt to possess themselves of the property in a foreign jurisdiction by the uncertain right so to do arising out of their appointment by this court. By so doing they subjected all the property acquired in those jurisdictions to the control of their respective courts. Hurd v. Elizabeth, 41 N. J. Law (12 Vr.) 1; Moore v. Bonnell, 31 N. J. Law (2 Vr.) 90; Oakes v. Meyers, 68 Fed. Rep. 807; Reynolds v. Stockton, 140 U. S. 254; Sands v. Greeley Co., 88 Fed. Rep. 130; 31 C. C. A. 424; National Trust Co. v. Miller, 33 N. J. Eq. (6 Stew.) 155; Irwin v. Granite State Provident Association, 56 N. J. Eq. (11 Dick.) 244.

5. Hence those courts surely have the right to determine what creditors have just claim to so much of the fund in question as had its situs or origin in their respective jurisdictions and their respective priorities.

6. It sufficiently appears that those courts would neither allow the state franchise taxes which have accrued since the date of the decree of insolvency, nor give priority to them if allowed,, and that they have power to control the action of the receivers in that behalf.

7. This court ought, in dealing with those questions, out of considerations of comity, to he governed hy the rules which govern those courts, precisely as if those courts had actively intervened.

Many other authorities were cited hy the receivers in support of the foregoing propositions.

I have said that the propositions just stated and the questions arising thereon were not dealt with or considered in .the case of Crews v. United States Car Co., supra. That case, in its circumstances, was substantially like the present, and, although these questions were not raised or dealt with therein, it hinds me, and I must advise a decree in accordance with it.