Brouwer v. . Harbeck

*591 Allen, J. The Pelican Insurance Company, as a moneyed corporation, was subject to all the provisions of tit. 2, ch. 18, part 1 of. the Revised Statutes (1 R. S., 588), except those contained in §§ 19 to 25 of the first article, inclusive, from which it was in terms exempted, and the trustees were embraced in the term “ Directors,” used in that title. (1 R. S., 598, §§ 51, 53; Laws of 1842, 266, § 22 ; Laws of 1843, 65, § 4.) It was suggested that the provisions of the 9th section of the first article of' the'title referred to (1 R. S., 591) were inconsistent with' the 12th section of the act-incorporating the Atlantic Mutual Insurance Company (Laws of 1842, 261), which was incorporated in and made a part of the charter of the Pelican Insurance Company, and were therefore inoperative in respect to such'company. But § 12 of the act of incorporation does not relate to the chases in action and effects generally of the corporation, but only to one particular class of assets, to wit, notes for - premiums in advance. This section enables the company, for the better security of its dealers, to receive notes for premiums, in advance, of persons intending to receive its policies, and authorizes such notes to be negotiated for the purpose of paying claims or otherwise in the course of business, and provides for compensation to the signers thereof on such portions of said notes as may exceed the amount of premiums paid by them; thus making provision for a particular class of securities, which the company was authorized to take upon contemplated insurances, and to employ the same, as it might and did, without special authority,' employ its ordinary assets in the prosecution of its business. There is no claim that the notes transferred to the defendants were of the class mentioned, and if they had been, it would not affect the result of this action. The provision is not in conflict with that part of the Revised Statutes which will be hereafter considered. It was designed mainly to authorize the taking of the securities and their employment as a part of the effects and available assets of the company, and not *592 to take them out of the equitable provisions of the general law, or to distinguish between them and the other assets applicable to the payment of debts. A single question, then, is presented by the bill of exceptions in this case, and that relates to the construction' and effect to be given to the 9th section of the act entitled, “ Regulations to prevent the insolvency of moneyed corporations, and to secure the rights of their creditors and stockholders.” (1 R. S,, 591.) The preceding section (§8) prohibits conveyances, assignments and transfers of any of the effects of a moneyed corporation, exceeding the value of $1000, not authorized by a previous resolution of its board of directors, except in certain specified cases. The section under consideration reads thus: “No such conveyance, assignment or transfer, nor any payment made, judgment suffered, lien created, or security given, by any such corporation when insolvent, or in contemplation of insolvency, with the intent of giving a preference to any particular creditor over other creditors of the company, shall he valid in law; and every person receiving, by means of any such conveyance, assignment, transfer, lien, security or payment, any of the effects of the corporation, shall he hound to account therefor to its creditors or stockholders, or their trustees, as the case shall require.” After the ruling of the learned judge upon the trial, that proof of open insolvency or a knowledge on the part of the defendants that the company was insolvent, would be necessary to maintain the action, the plaintiff having failed to bring his case within the decision, evidence as to the intent of the transfer would have been out of place, as it would have been immaterial and entirely nugatory. So evidence bearing upon the character of the transfer, as whether it was in whole or in part in payment of a debt, or was a sale of the securities to the defendants upon a valuable consideration, would have been equally unavailing; *593 so that the sole question’.is presented by the exceptions taken to these rulings and' decisions upon the'trial.- - : ■■ The legislature, in all the provisions of thé act cited, recognizes and seeks'to carry out the doctrine that among-.creditors “ equality is equity and a prominent object is to prevent alHntentional preference among the creditors of insolvent moneyed corporations. The ninth section is incorporated in the statute for that purpose, and has only to do with acts in derogation" of the equitable doctrine of equality, and therefore forbids all transfers, payments, &c., by the corporation, when insolvent or :in contemplation of insolvency, with intent to give a preference to: any particular ¡creditor over others. ... ;t,v So long as insolvency neither exists- nor is:.contemplated, the corporation, like an - individual,. can - appropriate its means to the payment of its debts in such , order and in such amounts and proportions as the .¡directors,-.please. But upon insolvency, ; either actual or contemplated, this power ceases, and the -law declares the absolute right of every - creditor tci share pro fata, ini the assets of the company, and will not suffer this right to-.be defeated by any act .of the corporation or its-.officers., Hence, the rights of purchasers in. good faith are'¡not. protected as in cases, provided for by: § 8 of the same act.:■ ■ Such provision was- not necessary to. protect , the. rights- of parties. - -The .creditor to whom the unauthorized payment or-transfer is-made is not a purchaser:; he parts with nothing, i and upon being compelled to account for whatever he may have .received,.bé still loses nothing which he1 has a-right, legal or equitable, to retain. His debt-revives aiidihe ágáiubecomes.a creditor, and shares equally with-the Others in-the property of the debtor. He receives all to. which he ever had a legal right; and.-the equities coincide. with ¡¡the< legal rights of the parties.- .- - • The statute declares the transfer and payment void in case, of actual or contemplated insolvency, if made with *594 intent to give preference to creditors, irrespective of the knowledge of the party receiving the transfer or payment. It is not a question of fraud, or an intent on the part of the creditor to obtain a preference in the payment of his debt, but a question as to the actual insolvency, or contemplated, followed by. actual insolvency of the corporation, accompanied with an intent on the part of its directors to prefer creditors; and as to a legal vested right on the part of the other creditors. The legal right of creditors to share equally in the property should not, in equity, be overthrown, except in favor of a purchaser in good faith and for a valuable consideration; and a creditor receiving it in payment of a precedent debt is not such a purchaser. The learned judge upon the trial took a distinction between open and avowed insolvency and mere actual insolvency, for which I find no warrant in the statute. Probably it was upon the ground that in the former case knowledge on the part of the creditors would be presumed; but the statute does not-make the validity of the transfer or payment depend upon the honajides or knowledge of the creditor. The statute is not, that every person receiving the conveyance or payment, with knowledge of the insolvency, shall account therefor, but that every person receiving, that is, with or without knowledge of- the pecuniary condition of the company, ^hall account, &c.; and courts ought not to engraft on the statute and upon the liability of parties limitations and qualifications which the legislature has intentionally omitted. A corporation, like an individual, is insolvent when it is not able to pay its debts. Insolvency means a general inability to answer in the course of business the liabilities existing and capable of being enforced. (Cu tten v. Sanger, 2 Younge & Jerv., 459; 2 Bouv. Inst., 157.) This term had a well known signification at the time of the enactment of the law in question, and was used by the legislature with reference to such known signification, and had respect solely to the actual condition *595 and situation of the corporation. This construction is authorized by that which has been given to other statutes very analogous. Voluntary transfers of property to creditors in satisfaction of debts by insolvents, or by debtors in contemplation of insolvency or bankruptcy, have been set aside, although notice of the bankruptcy of insolvency was not brought home to the creditor. ( Ogden v. Jackson, 1 John., 370 ; Gibson v. Muskett, 3 M. & G., 158 ; Flook v. Jones, 4 Bing., 20; Gorham v. Stearns, 1 Metc., 366; 1 Sandf. Ch. R., 207.) The act of the corporation, in making the payment or assignment, is a fraud upon the law providing for equality among creditors, and is therefore void. Whether the Pelican Insurance Company, at the time of the transfer to the defendants, was insolvent or contemplated insolvency, and whether such contemplated insolvency was followed by actual insolvency; whether the defendants received the transfer as purchasers or creditors, and if as creditors, the intent with which the transfer was made, will, upon a new trial, become important questions, but do not properly arise upon this appeal. The judgment must be reversed and a new trial granted. Costs to abide the event. Johnson, Selden, Denio and Parker, Js., concurred.