Barron v. Paine , 83 Me. 312 ( 1891 )

Peters, C. J.

These are suits in equity to recover certain amounts from stockholders, who have not fully paid for stock taken by them in a corporation against which the complainants have an unsatisfied judgment. The complainants have carefully pursued all the steps requisite for recovery, according to the procedure approved in the similar case of Grindle v. Stone, 78 Maine, 176 ; and we see no obstacle in the way of sustaining either of the suits. There can be no need of our noticing any points in opposition to the contention of the complainants, except such as we find upon the brief of the learned counsel of the respondents. What is not contested is admitted.

The first objection alleged is that the debt due the complainants is a mortgage debt of the corporation, the statute (E. S., ch. 48, § 47,) providing that stockholders shall not be personally liable to contribute to the payment of a mortgage debt of the corporation. The facts are that the complainants sold to the corporation real estate upon which was a mortgage given by the complainants to secure their note, and, as a part payment of the consideration of the conveyance to it, the corporation agreed to. pay the mortgage note, holding the complainants indemnified against the same. That was not a mortgage debt of the corpora-tion. Their liability is upon a contract with the complainants, to pay that debt. The corporation owed the complainants a sum of money equal to that debt, and agreed to pay them by paying such debt. Paying the debt would pay the complainants.. Not paying it, the corporation owed the complainants the amount.. The policy of the statute is only to exempt stockholders in a, corporation from liability on a debt which the corporation itself' has secured by mortgage; the presumption being that in such case the creditor has security enough, at all events, security he is satisfied rvith.

The next objection is that the complainants are not entitled to recover, because they have not themselves first paid the mortgage debt before proceeding against the corporation or its stockholders. The case of Burbank v. Gould, 15 Maine, 118, is cited upon this point, and it tends to sustain the view that such a defense, had it been made, would have prevented a recovery against the corporation. That case, however, has been much shaken by the course of decision since its day, and whether it would stand against the weight of authority now in opposition to it, may be questionable. The more modern doctrine seems to be that the grantor can recover the debt of the grantee, who has agreed to pay it, in order to have the means with which to pay it himself, and be discharged from his obligation. Equity can be resorted to, in such case, to require a proper appropriation of the money recovered. Locke v. Homer, 131 Mass. 93, embodies a mass of citations on the question.

But the disadvantage of the defense in the present case is that the complainants already have a judgment against the corporation for the amount of the debt, obtained without opposition, and that the respondents as stockholders, in the absence of fraud or want of jurisdiction, and wrong is notin this case pretended, are 'concluded thereby. Milliken v. Whitehouse, 49 Maine, 527. 'This 'is a common principle in the law, found in many analogous ■cases. This point of defense comes too late. It should have been Taefore judgment against the corporation if at all.

Another point only is taken, evidently not much relied on, •and that is that there is not evidence showing that the respondents were stockholders at the time the debt against the corporation was contracted. They were original stockholders, ■commencing their ownership with the inception of the corporation. It does not appear that they have ever conveyed. Owners at the beginning, nothing to the contrary appearing, owners till the end, is the presumption of continuance in circumstances like ■these; Grindle v. Stone, ante.

Complainants were allowed to make a formal amendment. The respondents amended and added on their side also. The amendments were not of a character that require the imposition <of terms.

Bills sustained with costs.

Walton, Virgin, Libbey, Haskell and Whitehouse, JJ., concurred.