Manhard Hardware Co. v. Rothschild

Grant, C. J. (after stating the facts). 1. The appealing defendants first contend that there was no evidence of fraud in these transactions. We cannot concur in this contention. Rosa Rothschild was a bankrupt shortly before. She does not in her answer give dates or amounts, or state where she obtained the moneys which she claims to have loaned to her husband. What she means by “ several hundred dollars ” is conjectural. This allegation is too indefinite to form the basis of any legal or equitable right as against creditors. Felker v. Chubb, 90 Mich. 26. According to the finding of the judge, which is supported by the testimony, Rothschild, about the time this indebtedness was incurred, represented himself as worth $20,000. Shortly afterwards he had nothing to apply in payment of his debts. He and his wife could have shown the bona fides of the transaction by their testimony, had they chosen to do so. Some of these conveyances were kept off record for a long time. The bill of sale to Rosa, of February 28th, was recorded just the day before the judgment sued upon in this case was rendered. These facts were sufficient to authorize a decree [661] in favor of complainant, unless the defendants chose to take the stand and explain the transactions. It was in their power to place the bona fides beyond question. They chose to remain silent. The failure to produce this evidence, so peculiarly within their knowledge, justifies courts in drawing a presumption against them. Lake v. Nolan, 81 Mich. 112; Warren v. Holbrook, 95 Mich. 185 (35 Am. St. Rep. 554); Schaible v. Ardner, 98 Mich. 70. Complainant showed sufficient to oast the onus probandi upon the grantees and vendees in these conveyances. Schaible v. Ardner, supra. 2. Rothschild and Simon have no interest in the property which is the subject of this controversy. They have parted with it, and have no legal interest to be protected. They can derive no benefit from a reversal of the decree. They therefore have no pecuniary interest in this suit. They do not represent their vendees, who are not before this court, and are not making a defense. They are nonresidents, were not served with process, and the statute provides a remedy for them if they choose to avail themselves of it. When they choose to appear in court, their rights will be considered. But Rothschild and Simon have no appealable interest. Abbott v. Alsdorf, 19 Mich. 157; 2 Enc. Pl. & Prac. 157; Fairbairn v. Middlemiss, 47 Mich. 372; Adams v. Woods, 8 Cal. 315; Hemmenway v. Corey, 16 Vt. 225. The decree provides that the costs shall be satisfied and paid out of the property. Thb appealing defendants therefore have no interest in this respect. 3. Appellants contend, also, that there is no allegation in the bill, nor any proof, that the complainant is in liquidation, and that trustees have been appointed to wind up its affairs. They contend that such trustees can act only by authority of sorbe court of competent j nrisdiction, and that their authority must be proven. The statute provides for these trustees without the intervention of courts. 2 Comp. Laws 1897, § 6087. The association is continued in existence for the beneficial winding up of its [662] affairs. Section 6086. Suits mus’t be brought by and against the association in the name thereof. Section 6088. Whether, under this statute, it is essential to allege and prove the decision of the corporation to go into liquidation, quaere. Whether it is in liquidation or is in active operation does not concern the defendants. In either event the association is the party bringing the suit. There is no danger that the defendants will be subjected to another suit. It is difficult, therefore, to see what interest they have in raising the question. However this may be, the signature and the jurat are a sufficient statement that the association is in liquidation. The bill commences as follows: “Your orator, the Manhard Hardware Company, Limited, a corporation duly organized under the laws of this State, and doing business at the city of Marquette, complainant, respectfully shows,” etc. If to this had been added the words “in liquidation,” it would have described the status and character of the association. Such description is as effectual in the jurat and signature as elsewhere in the bill. The defendants, if they desired to contest the existence of the corporation as alleged, should have raised the question by plea in abatement. 3 Comp. Laws 1897, •§ 10471. 4. It was admitted upon the record that, before the hearing, the trustee who signed and swore to the bill in behalf of the corporation had died, and it is claimed that his death should have been suggested upon the record, and another appointed to take his place. Mr. Jerome was not a party to the suit. The party complaining is the association. The death of an officer of a corporation does not affect the status of a suit. Decree affirmed, with costs. The other Justices concurred.