Shockley v. Fisher

I.

Sherwood, C. J.

It is not true as assumed by the demurrer that “ a corporation has no power or authority to* *501 make .an assignment under the State law.” Section 354, Revised Statutes 1879, permits an assignment to be “made by a debtor to any person in trust for his creditors.” Corporations are in law, for civil purposes, deemed persons. This was the rule at common law. 2 Inst., 697, 703, 706. In the construction of statutes they are to be regarded as persons, when the circumstances in which they are placed are identical with those of natural .persons expressly included in such statutes. The U. S. v. Amedy, 11 Wheat. 392 ; Railroad v. Gallahue, 12 Grat. 655, and cases cited. Section 3124, Revised Statutes 1879, declares that “ When any subject matter, party or person is described or referred to by words importing the singular number or the masculine. gender, several matters and persons, and females as well as males, and bodies corporate as well as individuals, shall be deemed to be included.” So, whether we go by the common law rule, or by the statutory provision just noted, there is no doubt but that section 354 will apply as well to a corporation as to a person. The books speak but one language as to the right of a corporation to make an assignment. Chancellor Kent says ;• “A corporate body, as well as a private individual, when in failing circumstances, and unable to redeem its paper, may without any statute provision, and upon general principles of equity, assign its property to a trustee in trust to collect its debts,” etc. 2 Kent Com., 398 and note. And elsewhere it is said that a corporation may exercise such right “ to the same extent and in the same manner as a natural person, unless restricted by its charter or some statutory provision.” De Ruyter v. Trustees, 3 Barb. Ch. 119 ; Burrill on Assignments, § 64.

II.

It is equally unquestionable that the unpaid shares are corporate assets, and, therefore, assignable. Adler v. Brick Manf'g Co., 13 Wis. 63 ; Webster v. Upton, 91 U. S. 65 ; *502 Hatch v. Dana, 101 U. S. 205 ; Ogilvie v. Ins. Co., 22 How. 380 .

III.

And when these unpaid subscriptions are properly as. signed, they pass to the assignee; he represents the corporation and the creditors, and is the proper person to sue-for and collect the debts and assets. Thompson on Stockholders, § 340; Nathan v. Whitlock, 9 Paige 152 . If he could not do this, his selection and appointment as. assignee would be a nugatory act.

IV.

An assignment for the benefit of creditors is a trust, and the assignee is to be regarded as a trustee. Perry on Trusts, § 585. Now, the rule is well established that if one-of several trustees refuses to accept and execute the trust, the whole estate will vest in the others who act, as much-so as if the refusing trustee were dead, or never had the-trust tendered him. King v. Donnelly, 5 Paige 46 ; Perry on Trusts, § 273; Hill on Trustees, p. 225, et seq. Treating the allegation in the petition that “ said White failed and refused to qualify as assignee under said deed,” as tantamount to an averment of disclaimer on the part of White, we have no doubt that Shockley, the acting assignee, was the only proper party to sue, and that consequently, White, if joined, would have been improperly joined with him.

We have thus examined in brief the grounds of the demurrer, whether general or special, and hold them all groundless, and judgment reversed and cause remanded.

All concur.