Kraft v. Highland Permanent Building Ass'n

Bosn, O. J., delivered the opinion of the Court. Two free shareholders or depositors of a building and loan association have in this proceeding sought dissolution of the association under the provisions of section 92 of article 23 of the Code: for dissolution of an insolvent corporation upon bill of complaint by a stockholder; a decree of dissolution has been denied; and they have appealed. The case was presented on the bill and an answer of the corporation, and the facts are therefore settled by the pleadings. Miller, Equity Proc., 317, etc. The decisive question is, in the opinion of this court, whether the requisite insolvency is shown.

In February of 1933, the directors of the corporation came to the conclusion that under existing circumstances it was desirable that its affairs should be liquidated, and that money to be realized on the mortgages should, after payment of notes outstanding, he distributed to the free shareholders as the mortgages were paid off. A resolution embodying this conclusion was passed by the board and communicated to the shareholders, and in the communication, exhibited in the proceedings, the directors expressed their willingness to continue to conduct the affairs without extra cost t0‘ the shareholders until all assets should have been disposed of and the proceeds distributed, and they added that they believed that ⁵⁷² the association was thoroughly solvent, and that every shareholder would be paid in full. Holders of the larger part of the shares, in amount, expressed assent to this plan, and none except the complainants' dissented; and the holders of the outstanding notes consented to await the liquidation. "Whether the notes have been renewed for that purpose is not stated.

Liquidation of the association was then begun. Frank Kraft, an original incorporator of the association, and a director throughout his connection with it, and also vice-president and treasurer, was, with his wife, holder of free shares in the amount of $26,657.02, including a dividend declared in December, 1932; and on October 17th, 1932, these complainants had given due notice of their intention to withdraw the amount standing to their credit. In December, 1932, Kraft resigned as a director. This proceeding was instituted after notice of the resolution to liquidate had been sent out by the remaining board.

The corporation respondent denied insolvency, but the complainants contend that a statement of the financial condition of the association on December 7th, 1932, sent out by the directors and exhibited with the answer, demonstrates insolvency notwithstanding the denial. The statement shows on its face resources of $363,643.03 and liabilities of $344,-689.22. In the resources are included mortgage loans valued at $322,198.32 and real estate valued at $38,903.97. How these valuations were arrived at is not stated in the record, and it may be that the resources cannot now bring so much; but the fact remains that on the face of the whole record it appears that there were $18,953.81 of resources in excess of obligations shown.

The court cannot contradict this showing if the record does not. Only $2,540.74 in cash immediately available