Underwood v. Stafford ( 1967 )

LAKE, J.,

concurring: The alleged wrong is not an injury to the corporation by mismanagement of its business of properties. The alleged wrong is a fraudulent conveyance of its assets to the injury of its creditors, specifically this plaintiff. He does not allege a derivative right originating in a- wrong done to the corporation. He alleges a personal right originating in a direct injury to him. He sues the defendants not as incompetent, negligent or dishonest directors who wronged their corporation, but as mala fide grantees in a fraudulent conveyance of his debtor’s property. The corporation may have no cause of action. A fraudulent conveyance is not a wrong to the fraudulent grantor. The defrauded creditor can sue in his own name to set it aside, or to subject the assets so conveyed by his debtor to the payment of his claim, because the conveyance is a wrong to him. He is the real party in interest because it is he who has been injured. That his debtor, the fraudulent grantor is a corporation does not alter this. See: McIver v. Hardware Co., 144 N.C. 478, 57 S.E. 169; 19 Am. Jur. 2d, Corporations, § 1352; Stevens on Corporations, § 187; 19 C.J.S., Corporations, § 1382. The distribution by a corporation of all of its assets among its stockholders without paying its debts is just a common, garden variety of a fraudulent conveyance. The trust fund theory of a stockholder’s liability on an unpaid stock subscription is not involved in a proceeding to reach assets fraudulently conveyed. If there are other creditors entitled to share in the assets fraudulently distributed among the shareholders, they may intervene in the plaintiff’s suit to protect their rights. Refining Co. v. Bottling Co., 259 N.C. 103, 130 S.E. 2d 33. The appointment of a receiver in order that the property may be recovered and applied for the benefit of all the creditors would be appropriate. Pender v. Speight, 159 N.C. 612, 75 S.E. 851, McIver v. Hardware Co., supra. That, however, is not the only remedy available to a defrauded judgment creditor of the corporation. I, therefore, concur in the result reached by the majority.