BALFOUR t1. ROGERS.
925
could not be sustained astagainst one stockholder. Such qases, however, are in equity. All the cases cited on this point by counsel for and governed by the suggestions just defendant are suits in made. The very point of the Iowa statute is to provide a speedy and adequate method to give complete aid to a judgmeIitcreditor who pursues a stockholder for the amounts unpaid on his shares. The reasoning of the Iowa supreme court in Stewart v. Lay, supra, as above given, manifests the purpose of the statute. The shareholder has no grounds of complaint that he alone is sued, for his is a several, individual liability. And the very- fact that section 1634 entitles him to his separate action against another stockholder for contribution argues strongly against even the right of another stockholder to be joined with him as defendant in this action. He can avoid this statutory proceeding by paying in full his shares. And, since his obligation is alone sought to be enforced by the judgment creditor, he alone is the proper party. The creditor is not attacking the corporation in this action. The corporation has already had its day in court in the matter of the creditor's claim. The corporation is not interested in "the attempt of the creditor now to force from the stockholder, under the remedy afforded by the statute, the payment of so much of his unpaid shares as may be necessary- to discharge the judgment already obtained against the corporation. "This liability is fixed, and does not dp.pend on the liability of other stockholders. There is no necessity 1i)l' bringing in other stockholders or creditors. Any creditor wh'} has recovered judgment against the company, and sued out execution thereon, which has been returned unsatisfied, may sue any stockholder, and no other creditor can." Flash v. Conn, supra. This ground of demurrer must be overruled. Let an order be entered overruling the demurrer, to which defendant excepts. And defendant is given until February- 1, 1895, to elect to stand on his demurrer or to answer by that date, as he Olay be advised. BALFOUR et aI. T. ROGERS et al. (Circuit Court, D. Oregon. December 17, 1894.' No. 1.986.
L
ExECUTION SALE-REDEMPTION-MESNE PROFITS-OREGON STATUTB.
The statute of Oregon, relating to execution sales of land. provides that "'the purchaser, from the day of sale until resale or a redemption, and the redemptioner, from the 'day of hIs redemption until another redemptIon, shall be entitled to the possessIon of the property * * *, unless the lJ8.IIle be In possession of a tenant * * *, and, In such case, * · · to * · · the rents * · .... 1 alll's Ann. Laws, I 307. Held, that the right to receive rents and profits under this statute does not Imply that what is thus receIved can be retaIned by the purchaser in case of a redemption, but luall such cases the product of ,the property must be accounted tor to the redemptioner. tiff cannot abandon that and ask a dIfferent decree under the
.. PLEADING-PRAYER FOR RELIEF.
Where there Is no obstructIon to the partIcular reUef prayed, the plain
o
prayer.
'.. This was: 8: SUit .byrBobert.Balfour Jl:gabllilt ,R, J. , 'ior:th,eI roreclosure of .Ql,.mol'tgage. The qase .was hea,rd 'l , ". ,upon
"'.
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mortgage in 'lsUit;attacllments wet'e levied on ,Ute mor1;gagEil9 ,property, which ':Was subsequently· sold upon executi9P intha atuJ,chment suits; The .,;-complainltnts,'tQ protect"their mQrtgage, of ,the 'purchaserat, auch sale by an assiglpnentof,Jbe certificate of sale filroIIl. the defendant t$criber, who it from the purBckaser. ,', wal!\conftrmed. to, Balfqur, Guthrie & Co., but the ,order of 'confirmation ,was ,afterwards CQrrected by substituting the '!names of the; "complainants, 'Robert Balfour, Robert Brodie Forman, :.and Ale:xanderGuthrte for, that of Balfour, Guthrie &Co..Within '1lhe time fixed by statute: in which: redemption maybe made, the mortigagors conveyed to Scriber the premises, excepting 320 IHcres thereof,describi:ng ill.· their deed the estate or interest conveyed their of, redemption" in the premises" which were par-ticularly'described. 1:'hereafter Scriber made .lledemption,by paying to shemff the aniountrequired for such pur-pose. In, the meantime Of)mplainants; while in possession of the premises, collected '$1,660.'81, insurance .money for 10S,S ()D thepremili\ of which they S, expended $489.92 in repairs on the insured building. They also re'ceiveQ 1$1,320.49 from" rents ,and profits' of the, mortgaged property, /ofwhich$27.93 was expended complainants pray "that an accounting be had, .and the amount due tbem on their note and mortgage, and on account of insurance, and .of the purchase of tht> certificates of sale by them, be ascertained, and that the mortgagors be d()creed, to, ,pay such amount" with their costs and attorney's fee in the 'forec1osure'; that their mortgage be foreclosed, and the proceeds of sllchforeclosure sale he applied in payment of the amount so found due; that paid by complainants in purchase: ,of tbe title from the,sal() in the, attachment suits 00 to be a the property prior to all other, liens. They pray for the appointment of a receiver, and for general relief. :[The' case was heard upon a stip1.llationof facts; 'nearly all of which '",ire iDimate:rial, to in',tlJ,e,c:rse; ',.It is argued on behalf .ulf,compla,inantsthatSel.'iber title to redeem; that the ",description in the deed to him af the title conveyed as I'the equity "'df::tedemption" in the lanfds ; that the deed "lphrports to be for the benefit 6£' certain of the gi.'antors' creditors, creditors, is void; and, not appearing to be for the that notioo' efi'edemptio.n ,waa, insufficient, because it 'vas addressed to RalfotJP, (!}utlhrie&Co.,whereas it should have been to the complainants as named in this bill; that the redemption was
,by ;the :defendants::
wife
ar mortg;tglil,.for
$20;000. ,e:s:ecuted by fIJld wife. It ap-
927
also ineffective becausef1lppber did not redeem a,s to all the land, and for the further. reason that he redeemed in his own name, instead of doing so as truliltee. If all these various matters were proper to be considered, they would not be effective to defeat the right of Scriber in the property subject to the lien of complainants' debt. By the term "equi(y of redemption,"the grantors underto{)k to convey all their estate in the premises subject to complainants' lien. It is not a technically accurate description ofa mortgagor's title, under a statute like· that of Oregon, where the legal title remains in the mO,rtgll:gor and interest is a mere chattel, but it, is a perfectly well understood and popularly a,ccepted description Of such title. If the deed appeared to be for the benefit of only a part {)f the grantors' creditors, the omitted creditors would be the only persons, to. complain. A party not affected by the preference could not do it. 1'he notice to redeem .was served upon Balfour, Guthrie & Co. instead complainants, presumably because of the fact that the confirmation of sales made in the attachment suits was made to such apparent company, instead of being made to complainants by their· individual names. It is not pretended that the complainants did not in fact have notice; that the notice to them as 3.1 partnership did not reach them as individuals. This objection is a mere quibble; and the same thing deserves to be said of the objeotions that Scriber did not describe himself as trustee in making redemption, and did not redeem as to all the property, although he paid all that was necessary to redeem the whole. But these objections have nothing to do with the case. As already stated, the complainants pray for an accounting, and that the purchase price of the certificate of sale held by them be decreed a lien upon the land to be paid with their mortgage debt out of the proceeds of the sale of the land. There is no issue as to this. The only question in the case is one of law,-whether complainants are entitled to retain the money derived from the property while it ,vas in their possession. The various objections argued in complainants' behalf, going to Scriber's right to redeem, do not obstruct the particular relief prayed for by them; and, where there is no obstruction to the particular relief prayed, the plaintiff cannot abandon that, and ask a different decree under the general prayer. 1 Daniell,. Oh. Pl'. 379, note. The statute provides that "the purchaser from the day of sale until resale or a redemption, and the redemptioner, from the day of his redemption until another redemption, shall be entitled to the possession of the property purchased or redeemed, unless the same be in possession of a tenant under an unexpired lease, and, in such case, shall be entitled to receive from such tenant the rents or the value of the use and occupation thereof during the same period."l The right to receive rents and profits under this section does not imply that what is thus received need not be accounted for in case of redemption. In Cartwright v. Savage, 5 Or. 397, it is held that. when a judgment debtor redeems, he may' recover the value of a crop growing upon the land at the time of the sale and harvested by
of
1
Hill's Ann. Laws,
§
307.
tliefl1uJ.tei1aikr while', in Jpossession.. It· follows that the ·product of 'ali be accounted for to the redemptioner. policy of the".statute toglte the creditor more than his debt, Wi,tlJ'iilterest and proper charges.·.· , The:coHipJainants in this 'case willpe charged with the amounts reas stipulated, less what hras been expended by them for repaifS; 'The money paid by them in purchase ()f the certificate of 18'1H the sheriff's subject to' their order. It is not nec· essarY:',1lbI# there shall be. any decree. tl$ to that. The foreclosure will be 'deCreed' as prayed,' and an allowance made of '500 for at· :therefu. " DOE \1'; NORTBWES':IlCOAL & TRANSPORTATION co. etal ,'; "(Circuit 17, 1894.) :'. .:.,' '·i " "-"
No. 2,156OonPOiUTtON8'-lNllOliVENOy:'-!APPOIN'l'MENT OF RECEIVER.
WikUe the' mere insolvency. of a corporation is not enough to authorize tlle;!lIlI?olntro,ent at the suit of its general creditors, yet ,,It ,clearly appear.s that on account of such insolvency, and the mfsCQtl,tll1l:!t of its the corporation ,is no longer able to proceed wltll'!1ts' business, or ItsassetEi are in process of being fraUdulently misap· plie4;. to the,injury of creditors, who are without other adequate means otrellet, it becomes the guty of the court to appoint a receiver. Under . the., ,property of tbe' corporation becomes a special fttnd,'out of which creditbrl;fare entitled to satisfaction of their demands, Iltidbence is the subjeCt 'of ail equitable lien or trust for their benefit.
TbiliJ,was a suit by Doeagainst the Northwest Cow & Tl'aJ).sportation Company, Samuel ,Coulter, and otheI'S, to obtain of a receiver of the corporation, and the administration ,of its, assets asa. trust fund for the benefit of its creditors. Defendants demurred to.the bill. ' WirtMihor, for complainant. Thbmas H; Strong, for defendants Samuel Coulter, Sylvester Farrell, and James Humphreys. . . Alex. Mernstein, for defendant A. J. Knott. J. W. Whalley, in pro , BELLINGER, District Judge. This is a suit by a creditor of the defendant corporation for the appointment of a receiver to take posseesion of and administer its assets as a trust fund for the benefit of its creditors. The defendant corporation is organized under the laws of Oregon. It appears from the bill of complaint that the plaintiff at different times, at the company's instance, advanced money' to pay i1ll· taxes and other liabilities, and to take up indebtedness of the company which it was unable to pay, and upon which it was threatene<J. with legal proceedings, to an aggregate amount of about f6,800; that the company owes other overdue indebtedness,ex:ceedtng $50,000, all of which it is unable to pay, and that it is insolvent; that the defendant Coulter is president of the corporation, and his son AI. Coulter and the defendant Farrell