#### *Bowyer’s Adm’r & als. v. The Giles, Fayette and Kanawha Turnpike Co.

July Term, 1852,

Lewisburg.

(Absent Lee, J.)

1. Suit by Corporation — Denial of Incorporation in Answer — Failure to Prove Incorporation — Effect.*—A plaintiff in equity claims to be an incorporated company. The defendant in Ms answer denies that the company had been legally organized, and calls for proof of its organization. The only proof is the *ex parte*affidavit of a witness, which is excepted to by the defendant’s counsel. Held: That the plaintiff having failed to prove the legal organization of the company, the bill should be dismissed.

2. Appellate Practice — Remanding of Cause — Case at Bar. — In such a case there is a sale of defendant’s land under a decree in the cause, and a final decree directing the purchaser to pay the purchase money to the plaintiff; and the defendant appeals. This court would reverse the decree and dismiss the bill but for the injury that decree would do to the appellant. But the purchase money being in the hands of the purchaser, this court will reverse so much of the decree as directs the purchase money to be paid to the plaintiff, and remand the cause, with directions to have the purchase money collected and paid to the appellant, and then to dismiss the bill at the cost of the plaintiff.

This was a bill filed in the Circuit court of Rayette county, by the Giles, Rayette and Kanawha turnpike company, to attach the effects of Peter Bowyer, an absent defendant, in the hands of James T. Waite and Thomas G. Clay. The bill charged that Bowyer was a subscriber for eight shares of the capital stock of the company, for which he had not paid; that he had removed to and lived in the state of Indiana; and that Waite and Clay were indebted to him. And making them all parties, the plaintiffs asked that the debt due from Bowyer to the company might be paid by Waite and Clay.

*The plaintiffs afterwards amended their bill, and charged that the debt due from Waite and Clay to Bowyer was for the purchase money of land, the title to which Bowyer had retained. That he therefore had a' lien on the land for the payment of the debt, which the plaintiffs were entitled to enforce; and that Waite and Clay were insolvent. They asked therefore that the land might be sold for the payment of the debt, and that their claim upon Bowyer might be paid out of the proceeds.

Bowyer and Waite answered the bill. Bowyer set up several grounds of defence, one of which was that the company had not been legally organized; and he called for proof of its organization.

This cause came on to be heard together with another brought by Bowyer against Waite and Clay to enforce the payment of the debt they owed him, when the court held that the plaintiffs had a right to resort to the fund in the hands of Waite and Clay for the satisfaction of the amount due to them from Bowyer; and that Bowyer had a right to assert his vendor’s lien on the land in the bill mentioned for the payment of the purchase money, which was S00 dollars, with interest from the 1st of October 1842. And it was decreed that Waite and Clay should pay the plaintiffs, the turnpike company, the sum of 270 dollars 63 cents, with interest on 200 dollars, a part thereof, from the 20th January 1848 till paid, and their costs; and that they should pay the residue of the said 500 dollars, with interest as aforesaid, to Bowyer, the plaintiff in the second suit. And it was further decreed, that if the money was not paid within thirty days, that the land should be sold by commissioners named in the decree, on a credit of six, twelve and eighteen months.

A sale of the land was made under the foregoing decree, and it was purchased for 410 dollars by John *Bowyer, who executed his bonds for the purchase money. And the causes coming on again to be heard, a decree was made in favor of the turnpike company for the amount of its claim out of the fund, and in favor of Bowyer for the balance; and a decree was made in favor of Bowyer against Waite and Clay for the balance due to him from them.

After this decree was made Peter Bowyer died, and his administrator with the will annexed and heirs applied to this court for an appeal, which was allowed. The other facts upon which the decision of this court was founded, are stated in the opinion of the court.

G. N. Johnson, for the appellants.

Price and B. H. Smith, for the appellee.

*

See monograpMc *note*on' ‘Corporations (Private) ’ ’ appended to Slaughter v. Com., 13 Gratt. 767.

DANIEL, J.,

delivered the opinion of the court.

This court, without deciding on the other defences set up by the testator of the appellant in his answer to the original and amended bills of the appellees, is of opinion that there is no competent and sufficient proof in the cause of the legal organization of the company. Proof of its organization having been distinctly called for, it was incumbent on the appellees to have furnished it. The only proof which they have furnished is the ex parte affidavit of Alfred Beckley, who states that he was present, on the 14th day of February 1840, at the house of Major Henry Montgomery in Rayette county, at a meeting of the stockholders of the company; that a majority of all the votes, representing 20,000 dollars, or one-half the capital stock of said company, was present, by proxy or in person; and that the company was then and there duly and properly organized and constituted pursuant to the act conferring the charter and also the general act regulating the establishment and organization of *turnpike road companies. And upon this affidavit there is endorsed an exception to it, as being ex parte and illegal, signed Bailey and Reynolds, who it is but *61fair to presume were acting- as the attorneys of the defendant. The appellees having brought their cause to a hearing on this vague and incompetent proof of their organization, the Circuit court ought to have dismissed their bill. And this court would now proceed to set aside the interlocutory and final decrees made in the cause and dismiss the bill, were it not that such a course would work injustice to the appellant. It seems that when this suit was first heard in the Circuit court there was also pending in the same court a suit brought by Peter Bowyer, the testator of the appellant, against Waite and Clay, to subject certain lands sold them to the payment of the purchase money. On the 4th September 1848, both causes were heard together, and the court, declaring its opinion that the company had a right to resort to the funds in the hands of Waite and Clay for the satisfaction of the balance of the stock subscribed by Bowyer, and that Bowyer had a right, in his suit, to assert his vendor’s lien against the lands in the hands of his vendees for the payment of the purchase money therefor, to wit, 500 dollars, with interest thereon from the 1st of October 1842, till paid, decreed that Waite and Clay should pay to the company the sum of 270 dollars 63 cents, with interest on 200 dollars, part thereof, from the 20th of January 1848 (that being the balance claimed to be due to the company by Bowyer on account of his subscription for stock), and also the costs of the suit of the company against Bowyer & ais., and that Waite and Clay should pay the residue of the amount due on account of the purchase money of the lands to Bowyer; and also further decreed that unless Waite and Clay should pay the said sums, as adjudged, *within thirty days, the lands should be sold on certain terms in the decree .specified. A sale was made and reported, and the two causes were brought on again, to be heard together, finally, on the 2d April 1849, when the court confirming the sale made an order for the collection o f so much of the purchase money as should be sufficient to satisfy the amount due to the company, and its payment to them; and also gave a decree for Bowyer against Waite and Clay for the balance of the money due by them for their purchase, after deducting the net amount of the proceeds of the sale made under the order of the court.

In this state of things, to set aside the decrees, or so much of them as is prejudicial to the rights of the appellant, and dismiss the bill without further order, would be unjust to the appellant, as the fund arising for the sale made by the order of the court, and to which he is entitled, would thus be left, in the hands of the purchaser, undisposed of. It appears, from the report of the commissioners who executed the order of sale, that the lands were purchased by John Bowyer; but it nowhere appears whether he and the appellant are the same person. Under these circumstances it is deemed proper to set aside so much of the interlocutory decree of the 4th September 1848, as orders Waite and Clay to pay to the company the sum of 270 dollars 63 cents, with interest and the costs of suit, and also so much of the final decree as orders the collection from the purchaser of the sum of 343 dollars 29 cents, and its payment to the company, and to affirm the balance of said decrees in other respects, with costs to the appellants; and to remand the cause to the Circuit court, with directions to make an order for the collection of the money due on the purchase made at the sale ordered by the court, and the payment of its net proceeds to the appellant, in *part satisfaction of the amount due by Waite and Clay, if the purchaser and appellant are different persons; and if not, to order that the appellant, as administrator of P. Bowyer, retain the a *mount*due by him on his purchase, and apply the same as a credit on the debt due by the said Waite and Clay, and to dismiss the bill at the costs of the company. Decree accordingly.