« SebelumnyaLanjutkan »
committed no error in striking that portion of the fifth plea complained of. We think the sixth plea was properly stricken, for the reasons stated in justification of the court in striking a portion of the fifth plea.
7. In the seventh plea, which was also stricken by the court, it is alleged that the plaintiff had settled with and released from liability several stockholders under said decree, and defendant contends that this is equivalent to a release of himself. We think the court properly struck this plea. The defendant is bound to the creditors upon his subscription to the capital stock of this company, and whether other stockholders were released or not is a matter with which he has no concern, unless this action on the part of the creditors or their agent increased his liability.
8. For the same reason we think the court was right in striking the eighth plea which is complained of, and also the ninth plea. When the plaintiff below showed that he had been duly appointed a trustee, by a court having competent jurisdiction, to recover of the stockholders of this company their unpaid subscriptions, for the purpose of paying off the creditors of the corporation, and when the plaintiff showed that defendant was a stockholder, and had subscribed so many shares to the capital stock of this company, and that the court had made an assessment upon the stockholders for a certain per cent upon the stock subscribed, and authorized him to sue and collect the same, we think he made out a case which entitled him to recover, notwithstanding any fraud which might have been practiced upon the stockholder to procure his subscription to the capital stock of this company by the corporation or its agents. Fraud thus practiced upon the subscriber was a matter which did not affect the creditors of the corporation.
The great question in this case is, whether the defendant, Howard, who is now the plaintiff in error, was a corporator and a subscriber to the capital stock of this company. admits by his plea that he did subscribe to fifteen shares of the capital stock of the National Express Company; and it was shown by the evidence introduced by the plaintiff in the court below, that the National Express Company and the National Express and Transportation Company were one and the same. A mere change in the name of a corporation we do not think makes any material difference; clearly not such a difference as would relieve & subscriber from liability to pay for stock subscribed by him.
9. It is insisted that the court erred in allowing the books of the corporation to be put in evidence for the purpose of showing that the defendant did subscribe to fifteen shares of stock, and to show also certain other things therein contained. When it was shown that the defendant was a stockholder in the company, then the books of the company were admissible in evidence against him. But when this fact is not shown, we are of the opinion that the books of the company would not be admissible in evidence against him. In this case, however, it was admitted by the plaintiff in error that he did subscribe to 80 many shares of stock in the National Express Company; 80 when it was proved that the National Express Company and the National Express and Transportation Company were one and the same corporation, we think the books were admissible in evidence, not only to show that Howard was a stockholder, the number of shares, and the value thereof he subscribed for, but to show any other transaction that had taken place between him and this company. We are aware that it has been held that the books of a corporation are admissible to show prima facie that the defendant was a subscriber to the stock of the company, and was a stockholder therein; but while we do not think this ruling is correct upon any reason or principle known to us, yet under the facts of this case, we think the books were properly admitted in evi. dence. We know of no decision, however, which shows, upon principle, that such books are admissible without some special circumstarce. We do not think that the case of Turnbull v. Payson, 95 U. S. 418, a decision by Judge Clifford, to the effect that the books of a corporation are admissible in evidence to show that a person is a stockholder, is correct. No reason is assigned in that decision, and none has been assigned in any decision wbich we have been able to find in either North Carolina or Alabama. But we think, under the facts of this case, where the defendant admitted that he was a subscriber to the stock of the National Express Company, and where it was shown that the National Express Company and the National Express and Transportation Company were one and the same thing, that the books were properly admitted. We think, furthermore, that when the subscription list was tendered, and admitted in evidence by the court below, the plaintiff in error had a right to show that he did not subscribe to this list; and
AX. ST. REP., VOL. XXI. - 11
therefore think the court committed error in refusing to allow him to make such proof. Yet we do not think this is reversible error, inasmuch as it appears from the record, without more, that the plaintiff had a right to recover in this case. So, upon considering this case, we are of the opinion that there was no material error committed by the court below, and that the finding of the jury was right, under the facts in proof.
10. It is contended by the plaintiff in error that the admission in the fifth plea, to the effect that he had never subscribed to the National Express and Transportation Company, but that he did subscribe fifteen shares to the National Express Company, could not be used as an admission against him upon the trial of any other plea than that; and the case of Glenn v. Sumner, 132 U. S. 156, is cited as authority to sustain this position. In the present case the main issue was, whether the plaintiff in error was a subscriber to the stock of the National Express and Transportation Company. It was affirmatively alleged in the declaration that he was; and if he was such subscriber, his liability, under the facts of the case, was clear and unmistakable. We think this allegation in the plaintiff's declaration, that he was such subscriber, called forth from him a clear and explicit denial of the same by a plea of non est factum, as was strongly hinted at by the supreme court of this state in the case of Thornton v. Lane, 11 Ga. 489. This was the main issue in the case, and without a determination of the same against the plaintiff, the plaintiff was entitled to judgment. So we think that a plea which denies that the defendant was a subscriber to this company, but which at the same time admits that he was a subscriber to another company (which two companies were one and the Bame), was evidence against the defendant (now plaintiff in error), and might be so used as an admission. While we admit that under the laws of this state a defendant
may many contradictory pleas as he thinks proper, yet if one of those pleas bears on the main issue in the case, and there ba an admission in the same by the defendant which is calcu. lated to damage his cause, that admission may be used in evidence against him. In fact, the only issue to be determined by the jury in this case was, whether Howard became a subscriber and stockholder in this company, and any plea which bore upon that issue, and which contained admissions by the defendant, could be used against him. So we think
that in the case of Glenn v. Sumner, 132 U. S. 156, what was said by the judge in delivering the opinion therein, to the effect that statements made for the purpose of presenting the issue to which they relate are not evidence upon any other issue in the same record, does not apply to this case.
CORPORATIONS. — For a thorough and completo discussion of the liability of stockholders to tho creditors of a corporation for the corporate debts, wherein is considered the question of unpaid subscriptions, 100 extended note to Thompson v. Reno sav. Bank, 3 Am. St. Rep. 806-873.
TIMOTHY V. CAAMBERS.
[86 GEORGIA, 207.) HOMESTEAD BOLD WITHOUT LEAVE MAY BE REOOVERED THOUGH PROCEEDS
ENJOYED - MESNE PROFITS SET OFF. - Where husband and wifo sold and convoyed homestead land secured under the constitution of 1868, with no leave so to do, that the beneficiaries of the homestead used and enjoyed the proceeds of the sale will not bar a recovery of the land, but money thus used and enjoyed may be set off against mosne profits for
which the purchaser is liable. HOMESTEAD SOLD WITHOUT LEAVE MAY BE REOOVERED WIFE'S WAR
BANTY DEED NOT ESTOPPKL. - The wife's deed, with or without war. ranty, if it has no effect as a conveyance of title, will not estop her as to her interest in the homestead promises in an action to recover the land on the homestead right. Though she may bo bound to respond to hor warranty, her own property, not the homestead itself, must be
looked to for satisfaction. HOW ESTRAD, PRESUMPTION IN FAVOR OF REGULARITY OF PROCEEDINGS TO
OBTAIN. – Liberal presumptions are indulged in favor of the regularity of homestead proceedings. A proper order to the surveyor will be preramod, where the ordinary has approved the plat returned to him; and approval of the “homestead” means, substantially, approval of the plat
and the schedule conformably to section 2009 of the Georgia code. HOMESTEAD, SUFFICIENCY OF SURVEYOR'S AFFIDAVIT OF Plat or. The
surveyor's affidavit that the plat " is a correct plat” means, in substance, that the land is correctly platted' and laid off, and is a sufficient affidavit
ander section 2008 of the Georgia code. HOMESTEAD, REGISTRATION OF PLAT Or. The law does not require the
plat to be recorded in the county in which the land lies, but only in the county in which the jurisdiction to secure the homestead is exercised: Georgia code, section 2009. Suit by R. G. Chambers and wife, Eliza, for the use of the wife and minor children, against A. R. Elliott and others, for a tract of land in Madison County claimed as a homestead, and for rents to January 1, 1885. Defendants pleaded the general issue, and also that in 1884 said land was conveyed by Chambers and wife to Elliott for a consideration of one thousand dollars, its full value; that plaintiffs have received the full benefit of the full value of the property claimed as a home stead, and that therefore the sale to defendants should be confirmed and plaintiffs decreed to pay them the money thus received, before any judgment for the land or interest therein is entered in favor of plaintiffs; that Chambers and wife had by deed conveyed their interest in the land to Elliott, and thereby passed any interest which the wife might have as beneficiary, and if any recovery can be had in this action it is only the homestead interest of the minor children; that the interest of plaintiffs, if any, can be estimated in money, and the interest of all parties protected by giving plaintiffs a certain interest in fee, the remainder to defendants, who pray judgment for such division of the property. All of the pleas except that of the general issue were stricken out. On the trial it appeared that in 1869 Chambers held the land by deed describing it as lying in Madison County. Chambers's petition for a homestead under the constitution of 1868 was introduced. It set forth that he was a resident of Elbert County, the head of a family consisting of himself, wife, and three minor children, and that he desired the said land set apart as a homestead out of land lying in the counties of Madison and Hart; he therefore prayed an order directed to the county surveyor of Madison County, directing him to lay off, plat, and value such realty, etc. This petition was duly filed and recorded in the office of the clerk of the superior court for Elbert County October 12, 1875. Plaintiffs also introduced a plat of 179 acres of land, with an affidavit of the county surveyor of Madison County, executed on October 25, 1875, that the plat was a correct one of that amount of land Burveyed by him for Chambers as a homestead, etc., all of which was recorded in the office of the clerk of the superior court for Elbert County on July 6, 1883. The homestead was approved by the ordinary of Elbert County October 27, 1875. Chambers testified that the land covered by the deed to him, and by the plat attached to the homestead papers, is the land in dispute, and the same that was laid off to him as a homestead in 1875; that he remained in possession thereof until 1884, when he delivered the same to Elliott, who kept it until he assigned to another; that the rental value of the land was $150 per annum; that one child had been born to him since the homestead was taken, that another had attained majority,