Imágenes de páginas
PDF
EPUB

v. Young, 64 Ark. 381, 62 Am. St. Rep. | ment is found: "The rules of the common 198, 42 S. W. 669. law were founded on the doctrine of the unity of the person, and the inability of

McCulloch, Ch. J., delivered the opin- husband and wife to sue one another, and ion of the court:

Appellant and appellee were at the time of the commencement of this suit, and are now, husband and wife, but at the time of the execution of the note and mortgage involved in this case they were not married. They resided in the city of Hot Springs, in this state, and appellee, being the owner of certain real estate situated there, borrowed a sum of money from appellant, and executed to him her promissory note and a mortgage on the real estate to secure the payment of the same. Subsequently she and appellant intermarried, and the question raised in this case is whether or not the marriage extinguished the debt. Ap pellee instituted the action against appellant to cancel the mortgage, on the ground that it had been extinguished by the intermarriage of the parties, and appellant filed a cross complaint to foreclose the mortgage. The rule at common law was that the intermarriage of the two parties to a contract extinguished the obligation. The question, however, for decision in this case, is whether the modern statutes governing the marriage relation and property rights thereunder, particularly the provision of the Constitution of this state (§ 7, art. 9) to the effect that the property of a married woman "shall, so long as she may choose, be and remain her separate estate and property," and the statute which provides that a married woman may transfer her separate property, carry on any trade or business, and sue or be sued in the courts of the state (Kirby's Dig. § 5214), operate as a modification of the common-law rule so as not to extinguish the obligation of a contract between the parties, executed prior to the marriage. Statutes of this character exist well-nigh universally in the American states, but the courts are not altogether in accord as to the effect thereof. In England there has been a great modification in the strict rules of the common law with respect to the property rights of married women, and the trend of the decisions there is to give a broad interpretation to those statutes in relaxation of those common-law rules.

In Lord Halsbury's Work on the Laws of England, vol. 16, p. 433, in commenting on the case of Fitzgerald v. Fitzgerald, L. R. 2 P. C. 83, 5 Moore, P. C. C. 180, 37 L. J. P. C. N. S. 44, where the English court decided that a husband's antenuptial contract to pay an annuity was not extinguished by the intermarriage of the parties, but was only suspended, the following state

[ocr errors]
[ocr errors]

although the married women's property acts contain no express provision on the subject, it is doubtful whether these rules have any application now that this disability has been removed. There seems on principle to be no reason why a husband or wife should not sue the other on a contract made before marriage, unless, regard being had to the nature or terms of the contract, and the other circumstances of the particular case, a contrary intention appears."

In some of the American states where there are statutes similar to ours they have been construed to modify the commonlaw rule so as to allow the parties to sue on a contract made before marriage. In Massachusetts the court first decided against such modification, but the later cases have overruled the former ones, and now hold it to be the settled law of the state that the subsequent intermarriage of the maker and payee of a note does not extinguish the binding force of the obligation. Butler v. Ives, 139 Mass. 202, 29 N. E. 654; Spooner v. Spooner, 155 Mass. 52, 28 N. E. 1121; and MacKeown v. Lacey, 200 Mass. 437, 21 L.R.A. (N.S.) 683, 86 N. E. 799, 16 Ann. Cas. 220.

In Illinois it has been decided that statutes similar to ours modify the commonlaw rules so that a wife's antenuptial contract is not extinguished by her intermarriage with the obligee. Clark v. Clark, 49 Ill. App. 163.

There can scarcely be found a more learned or interesting discussion on the subject of modification, by modern statutes, of the rules of the common law, with respect to the rights and liabilities of married women, than the opinion of Judge Riddick in the case of Kies v. Young, 64 Ark. 381, 62 Am. St. Rep. 198, 42 S. W. 669, where it was held that (quoting from the syllabus) "the common-law liability of a husband for his wife's antenuptial debts has not been abrogated by the married woman's act

which excludes the marital rights of the husband in the wife's property during coverture, and confers upon married women power to acquire and hold property."

The rule laid down in that case was subsequently abrogated by statute relieving the husband from liability for the wife's antenuptial debts, but the luminous discussion of the law by Judge Riddick still remains for our guidance upon analogous questions. It cannot be contended that the statutes of this state have in express terms abrogated the common-law rule governing the question

vail.

involved in the present case any more than | ligation to the husband should still prethey did the question involved in the case just referred to, but the question for determination in this case is, as it was in that, whether the reasons for the commonlaw rule have been abolished by statutes so as to cause the rule itself to cease.

In Kies v. Young, supra, the court decided that all of the reasons for the commonlaw rule, so far as it related to the liability of a husband for the antenuptial debts of his wife, had not ceased with the changes in the law wrought by modern statutes, and that therefore the rule itself had not ceased as a part of the law of this state. But it does not follow that the same can be said of the question now before us concerning the extinguishment of the liability of the wife for her antenuptial debts. On the contrary, it seems to us that the provisions of the Constitution and statutes of this state, which sweep away almost entirely the husband's common-law right to take or control the property of his wife, do completely abrogate the common-law rule that an antenuptial debt is extinguished by the intermarriage of the parties. The husband cannot sue at law to enforce the obligation, because the statutes do not confer that remedy, but the obligation remains unextinguished, and may be enforced in equity. The principal reason why this court upheld the liability of the husband for the antenuptial debts of the wife, according to the common-law rule, is that, while the Constitution and statutes of the state give the wife the right to hold her property so long as she may choose, and to sue and be sued on her obligations with respect to her separate estate incurred during coverture, those rights to hold her own property are limited to her exercise of the choice to claim it, and that this does not entirely take away the husband's rights, so that it can be said that the reason for holding the husband liable for the debts has ceased. It is pointed out in the decision that the wholesome

ness of the common-law rule in that respect is not affected by modern enactments, because the wife may choose not to take her property, but to allow her husband to take it, and that, as there is no provision in the statute for her to be sued on an antenuptial obligation, there would be no remedy for the creditor unless the common-law remedy against the husband is preserved. The reasons there stated have no aplication to the present case where the antenuptial obligation of the wife to the husband is under consideration, and, where she has the choice of holding her property and of disposing of it at will without the consent of the husband, there is no reason why the common-law rule extinguishing her ob

It has long been the law of this state that an obligation of husband and wife, even during coverture, while unenforceable at law, is binding and enforceable in equity. Pillow v. Sentelle, 49 Ark. 430, 5 S. W. 783. We have held, too, that where there exists a valid obligation of one of the spouses to the other, the remedy is not suspended during coverture, but that the obligation may be enforced in a court of equity. Lawler v. Lawler, 107 Ark. 70, 153 S. W. 1113; Shane v. Dickinson, 111 Ark. 353, 163 S. W. 1140. The question cannot be said to be entirely free from doubt, but we believe the true, the just, and the logical rule to be that the common-law doctrine on this subject has been modified, and that the unity of the parties to the marriage has been destroyed to the extent that obligations incurred before the marriage relation was entered into are not extinguished by it.

We are therefore of the opinion that the learned chancellor reached the wrong conclusion on the question involved, and his decree must be reversed, with directions to enter a decree in accordance with this opinion.

[blocks in formation]

Note.

Right of minority stockholder to compel corporation to take into its own name stock in another corporation which it is carrying in the names of others.

HYAMS V. OLD DOMINION Co. seems to be the only case upon the question whether a minority stockholder can compel the corporation to take into its own name stock of another corporation which it is carrying in the names of others.

It may be of interest, however, in this connection to refer to Martin v. Ohio Stove Co. 78 Ill. App. 105, where it was held that an action would not lie by an Ohio corporation against one of its directors and

their number, is sufficient to make the hold-state, and exercise all the rights of ownering of the property in that manner the act ship, including the right to vote thereon. of the board.

[blocks in formation]

stockholders.

Same

compelling corporation to carry stock in its own name.

9. Minority stockholders in a holding corporation are entitled to the aid of equity to compel the corporation to take into its own name stock which it owns, but is carrying in the name of individuals, thereby depriving itself of the right to vote the stock at meetings of the corporation; and it is immaterial that, because of stock interests, the ones in whose names the stock is standing will control the policy of the corporation with respect to it.

(April 5, 1915.)

the Supreme Judicial Court for Cumberland County in complainant's favor in a suit to compel defendant to take in its own name title to stock which it owns, but is carrying in the name of individuals. Affirmed.

PPEAL by defendant from a decree of

The facts are stated in the opinion.

Messrs. William M. Bradley, Brandeis, Dunbar, & Nutter, and Edward F. McClennen, for appellant:

The defendant corporation has the right, with the knowledge and approval of its directors and a majority of its stockhold

6. That an act of a corporation in viola-ers, to have individuals hold title to this tion of the legal rights of minority stock- stock, even if this is not required to make holders occurred before a complaining stock- the title free from attack under the laws holder secured his stock does not deprive of New Jersey. him of the right to relief if the wrong is a continuing one. Parties

suit to compel corporation to carry stock in its own name. 7. A corporation issuing stock is not a necessary party to a suit by stockholders in another corporation which owns such stock, to compel the latter to place the title to the stock in its own name. Corporation other.

right to hold stock in

8. A foreign corporation may hold stock in a domestic one under a statute providing that any corporation may purchase and hold the stock of any corporation of this an Illinois corporation to compel the latter, to issue to the plaintiff stock subscribed for in the Illinois corporation by such director, and alleged to have been paid for by the property and money of the plaintiff, as the plaintiff could not subscribe for shares in a new corporation, either directly or indirectly, through persons acting as its tools. The court said: "If the transaction was as claimed by the Ohio Stove Company in the bill filed by it, and as found by the decree, then it intended to own and control the new corporation, which, by the law above referred to, it is prohibited from doing. Had the facts as now claimed by defendant in error appeared to the secretary of state in the report of the commis

Cook, Corp. § 684; Ulmer v. Maine Real Estate Co. 93 Me. 324, 45 Atl. 40; Wells v. Dane, 101 Me. 67, 63 Atl. 324; Hersey v. Veazie, 24 Me. 9, 41 Am. Dec. 364.

The defendant corporation has duly ratified the holding of the stock of the New Jersey corporation by Smith and Dodge.

Sampson v. Bowdoinham Steam Mill Corp. 36 Me. 78; Warner v. Mower, 11 Vt. 385; Chicago R. I. & P. R. Co. v. Union P. R. Co. 47 Fed. 15; Bagley v. Reno Oil Co. 201 Pa. 78, 56 L.R.A. 184, 50 Atl. 760; Jones v. Concord & M. R. Co. sioners appointed by him, it would have been the duty of that officer to have refused the certificate of incorporation. To permit the corporation by its directors to make the subscriptions in the individual names of the latter, thereby giving a semblance of compliance with the statute sufficient to secure the issuance of a certificate of incorporation, as was done in this case, and then by proceedings like the present, instituted by a person in pari delicto, compel the stockholders to transfer their shares to the corporation itself, would be to permit a person to take advantage of his own wrong to perpetuate a fraud upon the law, and to use a court of equity to aid in evading the law and setting it at naught." B. B. B.

67 N. H. 234, 68 Am. St. Rep. 650, 30 Atl. 614; 1 Morawetz, Priv. Corp. 2d ed. 482; Bucksport & B. R. Co. v. Buck, 68 Me. 81; Handley v. Stutz, 139 U. S. 417, 35 L. ed. 227, 11 Sup. Ct. Rep. 530; Foote v. Greilick, 166 Mich. 636, 132 N. W. 473; Hill v. Atlantic & N. C. R. Co. 143 N. C. 539, 9 L.R.A. (N.S.) 606, 55 S. E. 854.

The defendant corporation should not be required to secure a transfer on the books of the New Jersey corporation in a suit to which the New Jersey corporation is not a party.

Kelly v. Thomas, 234 Pa. 419, 51 L.R.A. (N.S.) 122, 83 Atl. 307; Kimball v. St. Louis & S. F. R. Co. 157 Mass. 7, 34 Am. St. Rep. 250, 31 N. E. 697; Jackson v. Hooper, 76 N. J. Eq. 185, 74 Atl. 130; Taylor v. Mutual Reserve Fund Life Asso. 97 Va. 60, 45 L.R.A. 621, 33 S. E. 375; Bradbury v. Waukegan & W. Min. & Smelting Co. 113 Ill. App. 600; Wason v. Buzzell, 181 Mass. 338, 63 N. E. 909; Condon v. Mutual Reserve Fund Life Asso. 89 Md. 99, 44 L.R.A. 149, 73 Am. St. Rep. 169, 42 Atl. 944; Gregory v. New York, L. E. & W. R. Co. 40 N. J. Eq. 38; Clark v. Mutual Reserve Fund Life Asso. 14 App. D. C. 154, 43 L.R.A. 390; McCloskey v. Snowden, 212 Pa. 249, 108 Am. St. Rep. 867, 61 Atl. 796; Madden v. Penn. Electric Light Co. 199 Pa. 454, 49 Atl. 296, 181 Pa. 617, 38 L.R.A. 638, 37 Atl. 817; North State Copper & G. Min. Co. v. Field, 64 Md. 151, 20 Atl. 1037; Howard v. Mutual Reserve Fund Life Asso. 125 N. C. 49, 45 L.R.A. 853, 34 S. E. 199; Kansas & E. R, Constr. Co. v. Topeka, S. & W. R. Co. 135 Mass. 34, 46 Am. Rep. 439; Smith v. Mutual L. Ins. Co. 14 Allen, 336; Bill v. Sierra Nevada Lake Water & Min. Co. 29 L. J. Ch. N. S. 176, 1 De G. F. & J. 177, 6 Jur. N. S. 184, 1 L. T. N. S. 256, 8 Week. Rep. 205, 7 Mor. Min. Rep. 413; Wilkins v. Thorne, 60 Md. 253; Sudlow v. Dutch Rhenish R. Co. 21 Beav. 43.

Complainant has not sufficiently attempted to obtain redress through the directors and stockholders of the corporation, or accounted for not so doing.

Ulmer v. Maine Real-Estate Co. 93 Me. 324, 45 Atl. 40; Kelly v. Thomas, 234 Pa. 419, 51 L.R.A. (N.S.) 122, 83 Atl. 307; Hawes v. Oakland (Hawes v. Contra Costa Water Co.) 104 U. S. 450, 460, 26 L. ed. 827, 832; Dunphy v. Traveller Newspaper Asso. 146 Mass. 495, 16 N. E. 426; Dickinson v. Consolidated Traction Co. 114 Fed. 232; Clarke v. Marks, 111 Me. 218, 88 Atl. 718; Law v. Fuller, 217 Pa. 439, 66 Atl. 754; McCloskey v. Snowden, 212 Pa. 249, 108 Am. St. Rep. 867, 61 Atl. 796; Wolf v. Pennsylvania R. Co. 195 Pa. 91, 45 Atl. 936; McMullen v. Ritchie, 64 Fed. 253; Cook, Corp. 7th ed. § 740.

Complainant cannot complain, because if any wrong was done, it was done long before he became a stockholder, and was approved by his predecessors in title.

Dimpfell v. Ohio & M. R. Co. 110 U. S. 209, 28 L. ed. 121, 3 Sup. Ct. Rep. 573; Citizens' Sav. & T. Co. v. Illinois C. R. Co. 173 Fed. 556; Venner v. Great Northern R. Co. 209 U. S. 24, 52 L. ed. 666, 28 Sup. Ct. Rep. 328; Hawes v. Oakland (Hawes v. Contra Costa Water Co.) 104 U. S. 450, 26 L. ed. 827; Hitchings v. Cobalt Central Mines Co. 189 Fed. 241; Venner v. Great Northern R. Co. 153 Fed. 408; Bimber v. Calivada Colonization Co. 110 Fed. 58; Robinson v. West Virginia Loan Co. 90 Fed. 770; Hodge v. United States Steel Corp. 64 N. J. Eq. 90, 53 Atl. 601; Trimble v. American Sugar Ref. Co. 61 N. J. Eq. 340, 48 Atl. 912; Re Syracuse, C. & N. Y. R. Co. 91 N. Y. 1; Boldenweck v. Bullis, 40 Colo. 253, 90 Pac. 634; Home F. Ins. Co. v. Barber, 67 Neb. 644, 60 L.R.A. 927, 108 Am. St. Rep. 716, 93 N. W. 1024; Clark v. American Coal Co. 86 Iowa, 436, 17 L.R.A. 557, 53 N. W. 291; Alexander v. Searcy, 81 Ga. 536, 12 Am. St. Rep. 337, 8 S. E. 630; Moore v. Silver Valley Min. Co. 104 N. C. 534, 10 S. E. 679; Rankin v. Southwestern Brewery & Ice Co. 12 N. M. 54, 73 Pac. 614; South-West Natural Gas Co. v. Fayette Fuel Gas Co. 145 Pa. 13, 23 Atl. 224; United Electric Securities Co. v. Louisiana Electric Light Co. 68 Fed. 673; Symmes v. Union Trust Co. 60 Fed. 830; Venner v. Atchison, T. & S. F. R. Co. 28 Fed. 581; Whittemore v. Amoskeag Nat. Bank, 26 Fed. 819; Cook, Corp. § 737, p. 2683.

Messrs. Isaac W. Dyer, Scott Wilson, and Carl W. Smith, for appellee:

It is immaterial, so far as this action is concerned, at what time the complainant became a stockholder in the defendant company, whether it was before or after the time when the act complained of occurred.

Majors v. Taussig, 20 Colo. 44, 36 Pac. 816; Chicago v. Cameron, 120 Ill. 447, 11 N. E. 899; Forrester v. Boston & M. Consol. Copper & S. Min. Co. 21 Mont. 544, 55 Pac. 229, 353; Sayles v. Central Nat. Bank, 18 Misc. 155, 41 N. Y. Supp. 1063; Montgomery Light Co. v. Lahey, 121 Ala. 131, 25 So. 1006; O'Connor v. Virginia Passenger & P. Co. 46 Misc. 530, 92 N. Y. Supp. 525; Elkins v. Camden & A. R. Co. 36 N. J. Eq. 5; Winsor v. Bailey, 55 N. H. 218; Carson v. Iowa City Gaslight Co. 80 Iowa, 638, 45 N. W. 1068; George v. Central R. & Bkg. Co. 101 Ala. 607, 14 So. 752.

For Smith and Dodge to hold the legal title of corporate assets is a breach of the contract of membership and ultra vires of the corporation.

The charter of a corporation is a con- | 570; Peabody v. Flint, Allen, 56; Sawyer tract with the stockholders and furnishes v. Hoag, 17 Wall. 623, 21 L. ed. 736; Kean the measure of the corporate powers.

v. Johnson, 9 N. J. Eq. 407; Taylor v. South & North Ala. R. Co. 4 Woods, 575, 13 Fed. 152; Moore v. Schoppert, 22 W. Va. 282; Farrington v. Tennessee, 95 U. S. 679, 687, 24 L. ed. 558, 560; Bridgman v. Keokuk, 72 Iowa, 42, 33 N. W. 355; Atkins v. Gamble, 42 Cal. 86, 10 Am. Rep. 282, 13 Mor. Min. Rep. 514; Tipton Fire Co. v.

Morawetz, Priv. Corp. 2d ed. § 642; Savage v. People's Bldg. Loan & Sav. Asso. 45 W. Va. 275, 31 S. E. 991; Thomas v. West Jersey R. Co. 101 U. S. 71, 82, 25 L. ed. 950, 952; Penobscot Boom Corp. v. Lamson, 16 Me. 224, 33 Am. Dec. 656; Franklin Co. v. Lewiston Inst. for Sav. 68 Me. 43, 28 Am. Rep. 9; Kean v. Johnson, 9 N. J. Eq. | Barnheisel, 92 Ind. 88; Trask v. Chase, 107 401; People ex rel. Atty. Gen. v. Utica Ins. Co. 15 Johns. 358, 8 Am. Dec. 243; New York Firemen Ins. Co. v. Ely, 5 Conn. 560, 13 Am. Dec. 100; Berlin v. New Britain, 9 Conn. 175; Head v. Providence Ins. Co. 2 Cranch, 127, 2 L. ed. 229; Cook, Corp. 4th ed. § 669; Hoole v. Great Western R. Co. L. R. 3 Ch. 262, 17 L. T. N. S. 153, 16 Week. Rep. 260; Pollock v. Farmers' Loan & T. Co. 157 U. S. 429, 39 L. ed. 759, 15 Sup. Ct. Rep. 673; Langolf v. Seiberlitch, 2 Pars. Sel. Eq. Cas. 64.

The contract of membership and the limitation of corporate powers give any stockholder the right to insist that the corporation hold the legal title to its assets, unless a business purpose is served.

Cook, Corp. 4th ed. § 670; Clark & M. Priv. Corp. § 629; Kean v. Johnson, 9 N. J. Eq. 401; Morawetz, Priv. Corp. 2d ed. § 646; 10 Cyc. 298; Metropolitan Elev. R. Co. v. Manhattan Elev. R. Co. 11 Daly, 373; Consolidated Water Power Co. v. Nash, 109 Wis. 490, 85 N. W. 485; Forrester v. Boston & M. Consol. Copper & S. Min. Co. 21 Mont. 544, 55 Pac. 229, 353; Endicott v. Marvel, 81 N. J. Eq. 378, 87 Atl. 230: Tillis v. Brown, 154 Ala. 403, 45 So. 589; Union Bank v. Jones, 4 La. Ann. 236; Gallery v. National Exch. Bank, 41 Mich. 169, 32 Am. Rep. 149, 2 N. W. 193; Bedford R. Co. v. Bowser, 48 Pa. 29; Washington Mill Co. v. Sprague Lumber Co. 19 Wash. 165, 52 Pac. 1067; Brinkerhoff Zinc Co. v. Boyd, 192 Mo. 597, 91 S. W. 523; Worthington v. Worthington, 100 App. Div. 332, 91 N. Y. Supp. 443; Armington v. Palmer, 21 R. I. 109, 43 L.R.A. 95, 79 Am. St. Rep. 786, 42 Atl. 308; Polar Star Lodge v. Polar Star Lodge, 16 La. Ann. 53; Jorndt v. Reuter Hub & Spoke Co. 112 Mo. App. 341, 87 S. W. 29; Frankfort Bank v. Johnson, 24 Me. 490.

For Smith and Dodge to hold the legal title of corporate assets involves a breach of trust relation on the part of the corporation, to its stockholders.

Me. 137, 77 Atl. 698; Jackson v. Ludeling, 21 Wall. 616, 22 L. ed. 492; Hun v. Cary, 82 N. Y. 65, 37 Am. Rep. 546; Wheeler v. Abilene Nat. Bank Bldg. Co. 16 L.R.A. (N.S.) 892, 89 C. C. A. 477, 159 Fed. 391, 14 Ann. Cas. 917; Beers v. Bridgeport Spring Co. 42 Conn. 17; Oliver v. Oliver, 118 Ga. 362, 45 S. E. 232; Livingston v. Lynch, 4 Johns. Ch. 573.

Alienation of trust property or delegation of trust is a breach of the trust.

Abbott's Appeal, 55 Me. 580; Schiffman v. Schmidt, 154 Mo. 204, 55 S. W. 451.

An ultra vires act cannot be ratified." Bangor Boom Corp. v. Whiting, 29 Me. 123; Downing v. Mt. Washington Road Co. 40 N. H. 230; Taymouth Twp. v. Koehler, 35 Mich. 22; Germania Safety-Vault & T. Co. v. Boynton, 19 C. C. A. 118, 37 U. S. App. 602, 71 Fed. 797.

Savage, Ch. J., delivered the opinion of the court:

Bill in equity, in which the plaintiff, a stockholder, on behalf of himself and all other stockholders of the defendant corporation, seeks to have transferred to the defendant certain shares of the capital stock of the Old Dominion Copper Mining & Smelting Company, which it is claimed belong, or should belong, to the defendant, but which stand of record in the names of two of its directors, Dodge and Smith. The prayer of the bill is that the defendant "be ordered to get, take, and secure the legal title in its own name to all the shares of stock in other corporations to which it is rightfully entitled," and in particular the shares above referred to. There are other prayers in the bill, but they are not pressed, and need not be specifically stated. The case comes before this court on the defendant's appeal from a decree sustaining the bill.

The parties have agreed upon a statement of facts, and from that statement we glean the following as material to the ques

A corporation is a trustee for its stock- tions to be decided: holders.

1 Morawetz, Priv. Corp. 2d ed. § 237; Taylor v. Chichester & M. R. Co. L. R. 2 Exch. 378; Stevens v. Rutland & B. R. Co. 29 Vt. 549; Thompson v. Page, 1 Met.

In 1903 the Old Dominion Copper Mining & Smelting Company, a New Jersey corporation, had an authorized capital stock of 200,000 shares of the par value of $25 each, of which 150,000 shares had been issued.

« AnteriorContinuar »