Payson v. Coffin

19 F. Cas. 18, 5 Dill. 473

• Court: U.S. Circuit Court for the District of Kansas
• Decided: July 1, 1878
• Docket: Case No. 10,859
• Status: Published

Opinion

DILLON, Circuit Judge.

The two-years limitation in the bankrupt act is applicable to actions like the present. Walker v. Towner [Case No. 17,089]; Scovill v. Shaw, —Cir. Ct. DisT. Mass., Oct., 1878, before Clifford and Lowell, JJ.,—[Id. 12,552]. The assessment upon which this action was brought was made nearly four years after the adjudication of bankruptcy and the execution of the deed of assignment The only question is when the statute begins to run. The contention of the plaintiff is that it begins to run only from the time when the assessment of October 17th, 1876, was made. If so, the action is not barred. The contention of the defendant is that the statute commenced to run at least from the time when the deed of assignment was executed. If so, the action is barred. Extended consideration of this question is not necessary, since it has been decided, for reasons that' are entirely satisfactory, in the case of Scovill v. Shaw, supra, that the stockholders were liable to the suit of the assignee under the assignment, at any time after it was executed, for the enforcement of their obligations as stockholders. The facts of that case presented the exact question we are called on here to decide, and it was elaborately argued by able counsel.

That was an action by the assignee in bankruptcy of a coal and mining corporation against a stockholder to enforce the payment of amounts alleged to remain unpaid on shares held by the defendant. On April 2d, 1874, the petition in bankruptcy was filed, and on April 29th, 1874, the plaintiff was appointed assignee, and received a deed of assignment On June 10th, 1876, the bankruptcy court made an assessment, and shortly afterward the action was brought. It was held that the cause of action accrued to the assignee on receiving the deed of assignment, and, as more than two years had elapsed before the suit was commenced, the same was barred. The court held that the cause of action was the defendants’ obligation to pay for their stock, and not the assessment by the order of the bankruptcy court. If bankruptcy had not taken place, creditors would have had a remedy; and such remedy is equally open to the assignee. Says Clifford, J., in giving his opinion: “Creditors, after the failure of the corporation, could have brought a bill in equity against the corporation, and joined the stockholders to enforce the payment; and it is equally clear that the assignee might have sued the moment the title to the estate of the bankrupt was duly conveyed to him as such assignee. Stockholders, under such circumstances, are debtors to the corporation; consequently, the claim against them passed to the assignee, as part of the property, estate, and credits of the bankrupt.” Terry v. Anderson, 95 U. S. 636.

Judgment for the defendant.