DocketNumber: Docket No. 41
Citation Numbers: 145 Mich. 302
Judges: Blair, Hooker, McAlvay, Montgomery, Ostrander
Filed Date: 7/23/1906
Status: Precedential
Modified Date: 9/8/2022
(after stating the facts). As to the last proposition of defendant, viz.: That the tax sale and title thereunder were not shown to be invalid, it seems a sufficient answer to say that the sale of property carried on the assessment roll at a valuation of $8,000 to satisfy a tax of less than $200, and the further fact that the title to the property assessed was not acquired by the Sanitary My-Food Company until after the time fixed by law for the completion of the assessment roll, are ¿wo facts which are made affirmatively to appear, and in the absence of explanation and of proof of the regularity of the proceedings taken to collect the tax, are-sufficient to sustain the ruling that the sale was not a legal one. The evidence is undisputed that there were various portions of the machinery Which might have been separately sold, and that various
The instrument given by the city treasurer, and called a bill of sale,” was recorded in the office of the-register of deeds for the county of Calhoun and in the office of the vecorder of the city of Marshall. The bill prays that this ■instrument may be declared to be void, and that so much •of the property as has been removed be returned, and in default of such return the value thereof may be assessed and required to be paid. It is also prayed that an injunction issue to interrupt and prevent the removal of property. It appears there was an exigency. Certain of the shareholders had applied to the secretary, who seems •to have been the principal executive officer of the company, to protect the interests of the company in the property. While there was no refusal to act, there was delay, the end of which could not be foreseen. The secretary testifies that he was urged to bring suit to protect creditors, but had no money belonging to the company to pay .fees with and was not inclined to advance money. The ■testimony warrants the conclusion that the managing officers were not in accord. There are creditors of the company whose claims amount to about $2,000, and neither funds nor other property with which to pay them-. While the company is not strictly a corporation and not a ■ partnership, the title to the property sought to be recovered was in the company, and not in complainants. It is suggested that the actions of replevin and of trover would have afforded adequate relief. The argument made by •counsel for appellant expressly challenges the right of complainants to maintain either of these actions because, it is said, they did not have either a special or general title nor right to actual possession.
“ The property was practically rendered £ junk ’ by the fire. All I know of a claim of Thomas Rook Shepard to the property is that he has a deed on record. Some of the property was shipped to Mr. Gumbinsky after the fire. I came to Marshall at the time. I heard that he had possession of the property, and was shipping it away, and heard from Mr. Schley that he claimed that he was purchasing the property from Mr. Gumbinsky and was shipping it to him. I went to Kalamazoo, and told him that the Sanitary My-Food Company, Ltd., owned the property, and would hold him responsible for the property, whatever had been shipped to him. I will say that the stockholders asked me to institute these proceedings, and importuned the officers of the company to start proceedings then. Mr. Alexander lived in Grand Ledge, and Mr. Powers and Mr. Alexander being interested, as soon as I knew the property had been sold, I communicated*309 with them, and importuned them to tell us what to do. Mr. Powers advised me to go to Mr. Gumbinsky and claim the property, and I did so. I thought that was not sufficient, and there was some delay, owing to an argument as to what proceedings were necessary to take, and nothing was done until the stockholders commenced the proceedings. I was prepared to institute the same kind of proceedings that the stockholders took. They asked me to institute the proceedings before they were begun, and were very urgent, too. They informed me that the property was being taken away, and something ought to be done immediately. There was no objection made, the officers very willingly acquiesced in the action the stockholders had taken.”
Neither the company nor the stockholders are, so far as appears from the testimony, disputing, in fact, the right of complainants to proceed. It is the appellant, who claims the property under the city treasurer’s sale, who is contesting. There is abundant support for the finding that the inertia of the officers and other stockholders amounted to a refusul to interfere in behalf of the company ; that complainants only acted in an emergency after it seemed apparent that, without their • action, the rights of the company and of the shareholders and creditors would be seriously impaired; that there was no adequate remedy at law, under the circumstances, and that the court below not only had jurisdiction to proceed in the matter but to make the decree appealed from.
The decree is affirmed, with costs against appellant.