Scovill v. Shaw

21 F. Cas. 856, 4 Cliff. 549

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: May 15, 1878
• Status: Published

Opinion

CLIFFORD, Circuit Justice.

Assignees in bankruptcy are appointed by the creditors of the bankrupt, and the provision is, that as soon as the assignee is appointed and -qualified, the judge, or, where there is no opposing interest, the register, shall, by an instrument under his hand, assign and convey to the assignee all the estate, real and i>er-sonal, of the bankrupt, and that such assignment shall relate back to the commencement of the proceedings in bankruptcy. 14 Stat. 522.

Circuit courts have concurrent jurisdiction with the district courts of the same district, of all suits at law or in equity which may be brought by the assignee in bankruptcy against any person claiming an adverse interest, or by such person against such as-signee, touching any property or rights of property of said bankrupt, transferable to or vested in such assignee; but the same section provides that no suit at law or in equity shall, in any case, be maintainable by or against such assignee, or by or against any person claiming an adverse interest, touching the property and rights of property aforesaid, in any court whatsoever, unless the same shall be brought within two years from the time the cause of action accrued for or against such assignee. ' 1 Stat. 518. Certain other cases of like character are also described in the transcript as pending in the same court, but it is stated in the agreed statement that the case above mentioned is submitted to the court upon the statement of facts signed by the attorneys of the parties.

Sufficient appears to show that the complainants are the assignees in bankruptcy of the coal and mining company which was incorporated November 25, 1870, and was adjudged bankrupt April 11,1874, as appears by the record of the bankrupt proceedings. On ‘the other hand it appears that the respondents are the executors of Samuel Hooper, who died February 14, 1875, and that they were duly appointed as such executors on the 15th of March in the same year; that the coal and mining company was incorporated with a capital of $100.000. divided into shares of $100 each; that on the 19th of April of the next year the capital stock was increased from $100,000 to $200.000. Two additional issues of stock were made by the corporation: one, October 16, 1872, of $100,000, the other, December 27th, in the same year, of a like amount. But the respondents deny that the corporation had any powers to issue any such additional stock, and claim that the certificates are ultra vires, and absolutely null and void.

It is agreed that the testator, at the time the company was adjudged bankrupt, then being in full life, held one hundred and fifty shares of the first two issues, upon which he had paid to the company $40 per share: that he also held of the third issue seventy-five other shares, on which he had paid .to • the company $50 per share. Proxies were executed oy him September 24, 1872, and December 21st, in the same year. By the terms of the first proxy he authorized the person therein named to vote at a meeting of the stockholders, to be held at the office ■of the company at the time therein mentioned; but there is no evidence that the person named attended the meeting or gave any vote. Whether he voted for the third issue of the stock, therefore, does not appear; but It does appear that he held at the time mentioned seventy-five shares of the additional stock created at that meeting. 'None of the ■stock constituting the fourth issue was held by the decedent, but it appears that his proxy gave two hundred and twenty-five votes for the increase authorized at the meeting which increased the stock to $400,-•000.

Taken as a whole, the complainants insist that the evidence contained in the agreed statement is sufficient to show that the testator of the respondents was and is estop-ped to set up the defence that the last issue of the stock was without authority and invalid.

Difficulty would attend the solution of that -question, but the court is of the opinion that it is not necessary to decide the question, for the reason given in Foreman v. Bigelow [Case No. 4,934], that the claim is barred •by the statute of limitations. Authorities referred to in that ease will not, with one or two exceptions, be reproduced, nor will the reasons there given in support of the conclusion be repeated. Suffice it to say that it is now settled that the statute of limitations is as applicable in the national as in the ■state courts (Brown v. Hiatts. 15 Wall. [82 U. S.] 183; Ross v. Jones, 22 Wall. [89 U. S.] 576); and that the section of the bankrupt ■act referred to applies to ail judicial controversies between the assignee and any person whose interest is adverse to his, in behalf of the bankrupt’s estate, including actions like the one now before the court (Bailey v. Glover, 21 Wall. [88 U. S.] 342; Walker v. Towner [Case No. 17,089]).

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. Hall v. U. S. Ins. Co., 5 Gill, 484; Henry v. Vermillion, etc. R. Co., 17 Ohio, 187; Ogilvie v. Insurance Co., 22 How. [63 U. S.] 380; Adler v. Milwaukee Patent Brick Manuf'g Co., 13 Wis. 61; Mann v. Pentz, 2 Sandf. Ch. 257. Stockholders, under such circumstances, are debtors to the •corporation; consequently, as Chief Justice Waite held, 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. Since that decision it ■seems to be unnecessary to argue in support of the proposition, as it is established by the ¡highest authority known to our law.

Judgment for the defendants.