Cosmopolitan Life Insurance v. Sheats

Jenkins, J. (After stating the foregoing facts.) It is not thought necessary to elaborate any of the rulings announced in the headnotes except the last. In this suit, based upon a note given for a subscriber’s stock subscription, the original burden of proof was upon the plaintiff to show the execution and delivery of the note, and its assignment into the plaintiff’s hands. This was admitted. Thereupon it devolved upon the defendant, in order to ' establish the defense on which he relied, to show that the subscription for which the note was given was induced by fraudulent misrepresentation of the agents of the corporation. This also was admitted; the effect of which would ordinarily be to avoid the contract of subscription. In order, however, to obviate such a result, the plaintiff proceeds further to plead, and to show by the agreed statement of facts, that the corporation had, subsequently to the execution and delivery of the note, incurred a large amount of indebtedness, that it was insolvent, and that after the assets of the' company had come into the hands of the insurance commissioner, acting as receiver, they were, for the purpose of liquidation, and under order of court, sold to the plaintiff; and finally it was agreed “that the insurance commissioner could not, in the liquidation of its affairs, have paid in full the debts of the company unless the note in question, and other notes similarly situated, were either collected or disposed of; that the misrepresentations made to the present defendant were similar in all respects to the misrepresentations made to all purchasers of stock in the old company, except .those who were themselves the promoters of the general scheme to defraud the public.” The question, therefore, is whether, after the defendant had set up and proved'a good prima facie defense, the plaintiff rebutted it and carried the burden which then devolved upon it of proving that the subscription sued on must necessarily have been required by the receiver, by means of [627] collection or sale, in order to discharge the corporate indebtedness, by merely showing Pthat the insurance commissioner could not in the liquidation of its affairs have paid in full the debts of the company, unless the note in question and other notes similarly situated were either collected or disposed of.” The proof thus submitted by the agreement would seem very clearly to indicate that liability to some extent existed on the part of the subscriber, against which his plea of fraud would not avail; but whether the full burden resting on the plaintiff was thus successfully carried, or whether it was further incumbent on it to show to what extent the collection or sale of the note sued on had been necessary, when taken in connection with the amounts due by the other corporators, in order to pay off the corporate indebtedness, and whether or not the defendant’s liability would be limited to the proof thus made, are questions which to the writer are not without difficulty. Had the corporate assets not been disposed of by sale, but liquidated while in the hands of the receiver, it would seem that such official would certainly have been enabled, under proper authority, to marshal all the assets of the corporation, and in so doing to collect in full the stock subscriptions as constituting a part thereof, since the receiver, when so acting under authority of the court of equity, would have all parties at interest before the court, and would be required to adjust and protect the equities of all, and no injustice would result from such a subscriber being required to pay into court, for equitable distribution, whatever amount his subscription called for. Graves v. Denny, supra; Wilkinson v. Bertock, 111 Ga. 187 (2), 190 (36 S. E. 623). The present suit, however, is not maintained by the receiver, but was brought by the purchaser of the corporate assets, which sought to recover only for itself and solely for its own benefit. Could it have been shown that the subscription notes had been bought in for their full face value, there would be no difficulty in seeing that the ascertainment and payment of the proper dividend going to such subscribers from the receiver would fully adjust their rights and equities. But it is not to be expected that a purchaser at such a sale would actually pay face value for such assets; and in this case the record in fact discloses that the assets, including the note sued on, were bought in at such a discount as caused the purchaser through its committee to estimate at one*time that it would realize [628] an actual profit of $100,000 on the transaction. Suppose that in a given case it could be shown that under such a sale the subscription notes actually brought only a very small per cent, of their face value, should a maker be liable to the purchaser in the full amount of his obligation, for the reason that he might then be entitled to share equitably in any surplus which might arise in the hands of the receiver ? It does not seem that any rule should obtain which, in a legal sense at least, could permit the liability of such a subscriber to be increased by reason of such a sale. Herein to our minds lies the difficulty of the question involved,—that is, whether under such a sale the subscriber is liable to the purchaser in the amount of his note, with the right to share equitably in the actual surplus arising in the hands of the receiver, or whether he is liable only in the amount which the holder may be able to show was, when taken in connection with the amounts due by other corporators, necessary in order to pay off such indebtedness,. We have reached the conclusion that the first of these propositions is the correct one. It is not contended by either party to the litigation that the receiver did not have the right, when so empowered by the court of equity, to dispose of the corporate assets by sale. This being true, can it really be said that in a legal sense the defendant’s liability was increased thereby, even though it should appear that the purchaser under the sale expects to derive a profit therein ? When the court, having.before it the corporation, the shareholders, and the creditors (Howard v. Glenn, supra), passed the order for the liquidation of the corporate assets by sale, and subsequently, having the same parties before it, with a like duty to consider and protect the rights and interests of all, adjudged the sale to have been fair and equitable to all concerned, by solemnly confirming it, our opinion is that the procedure was equivalent, in a legal sense, to a collection in full of these claims by the receiver, in so far as he would have been enabled to accomplish the collection. Had the latter course been pursued the defendant would have been responsible for the amount of his note, with the right to share equitably in any surplus arising; and since, in a legal sense, the same liquidation of assets has been accomplished by means of a sale, the subscriber must look only to the receiver for the adjustment of his equities. It is therefore our [629] opinion that under the agreed statement of facts, the judgment of the court below in favor of the defendant must be reversed. Judgment reversed. Broyles, P. J., and Bloodworth, J., concur.