payment." 18 And this appears to be generally regarded as law, though there is little direct authority on the point.1

19

As a corporation cannot be sued after dissolution, it is equally clear that it cannot sue.20

§ 825. Property after dissolution.

It was the notion of the older law that upon the dissolution of a corporation without successor its property either escheated to the State or reverted to the donor. But this doctrine would hardly be applied in modern times to the prejudice of either creditors or stockholders. Whether the modern doctrine is or is not defective in logic, it is based on sufficient common sense; namely, that the property of a deceased corporation is a trust fund for creditors and stockholders, and that in default of a trustee to hold the legal title one will be appointed by the court. This modern doctrine is explicitly stated in a number of statutes; 21 and while the case is an uncommon one in practice, the courts when the case arises enforce the same doctrine, even in the absence of a statute, in the case of a foreign corporation.22

This question arose in an action of trespass to try the title to land in Texas. The land had been owned by a Louisiana corporation. The corporation had been dissolved in Louisiana, and three commissioners appointed to administer its affairs; but since no deed was made to them, the title to the Texas

18 City Ins. Co. v. Commercial Bank, 68 Ill. 348; and see Life Assoc. of America v. Fassett, 102 Ill. 315.

19 Assoc. v. Goode, 71 Tex. 90, 8 S. W. 639.

20 Pardee, J., in Marion Phosphate Co. v. Perry, 74 Fed. 425, 429, 33 L. R. A. 252; Sharpe, J., in Fitts v. National Life Assoc., 130 Ala. 413, 30 So. 374; and see Hammond v. National Life Assoc., 58 App. Div. 625, 69 N. Y. S. 585, affirmed 168 N. Y. 262, 61 N. E. 244.

21 Ark. Stat. § 1429; Dist. Colo. Code, § 774; Ga. Code, § 1886; Md. Gen. L. Art. 23, §§ 269, 272; Mont. Civ. Code, § 561; Neb. Comp. Stat. § 1737; N. Y. Gen. Corp. L. § 30; N. Dak. Civ. Code, § 2914; Oh. Rev. Stat. § 5658; Okl. Stat. § 982; Pa. 1872, P. L. p. 46, § 1; Tenn. Code, § 1721; Wash. Corp. Supp. 26; Wyo. Rev. Stat. § 3260. In Mississippi the legal title to the assets passes to the stockholders on dissolution. Miss. Code, § 847.

22 Baldwin v. Johnson, 95 Tex. 85, 65 S. W. 171.

land was not passed to them. The commissioners, who were also stockholders, instituted the suit; it was held that they could not sue as commissioners, but might maintain the suit as stockholders for themselves and other stockholders. Judge Brown said:

"When the corporation existed, the title to the property was vested in it, and, if a receiver or some officer had been appointed by the court to wind up the affairs of the corporation, the legal title would have vested in such officer in trust for the creditors and the stockholders. But there being no corporation, no receiver, trustee, nor creditor in existence, the trust ceased to exist, and the legal and equitable title united in the stockholders, the only persons who had an interest in the land." 23

§ 826. Suit by or against statutory representative.

If a dissolved corporation is succeeded, according to the statute of the State of charter, by a representative under the name of trustee or committee, such representative, in place of the corporation, may maintain any personal action in a foreign State.24 And such a representative could doubtless be sued, if service could be had upon him, for the debts of the corporation.25

§ 827. Incomplete dissolution.

What purports to be a decree of dissolution may have a saving clause continuing the corporation in existence for certain purposes.26 Judgment may be obtained against a foreign corporation after such a decree. If it may still be a party to suits at home, it may abroad. So if there is a statute providing that suits by or against the corporation shall not abate, such a statute will be given extra-territorial effect so far as

23 Baldwin v. Johnson, supra.

24 Relfe v. Rundle, 103 U. S. 222, 26 L. ed. 337; Planters' Bank v. Bass 2 La. Ann. 430; New Jersey P. & L. Bank v. Thorp, 6 Cow. (N. Y.) 46. 25 Relfe v. Rundle, supra.

26 Hamilton v. Accessory Transit Co., 26 Barb. (N. Y.) 46.

to allow a suit elsewhere to be prosecuted to final judgment.27 And though by the statute of the State in which suit is brought domestic corporations continue to have the right to sue for five years only after dissolution, a foreign corporation may sue after that time if by the law of the State of charter it may sue indefinitely.28 In order to bar the plaintiff, a foreign corporation, from obtaining judgment, said the Supreme Court of Maine, "it must appear that the corporation is not merely prohibited from the customary exercise of its corporate functions, but is actually extinct. It is not merely a perpetual paralysis but an unqualified dissolution, alone, that can defeat the plaintiff's right to a judgment. It must be considered as having a qualified existence so long as judgments can be rendered for or against it in the courts of that State," that is, the State of charter.29

Conversely, if the corporation has by the law of the State of charter been placed in the hands of a receiver and deprived of the power to sue, it is dissolved pro tanto and cannot sue elsewhere.30

§ 828. Extension of power by foreign State.

It may be claimed that a statute permitting a corporation to sue and be sued for a certain time after dissolution applies to a foreign corporation, and that such corporation, though dissolved in its own State, may nevertheless be party to a suit by virtue of the statute. In a few jurisdictions the statute is interpreted as applying to foreign corporations,31 though the better view would seem to be that it applies to domestic cor

27 Lycoming F. I. Co. v. Langley, 62 Md. 196; Michigan State Bank v. Gardner, 15 Gray (Mass.), 362; O'Reilly S. & F. Co. v. Greene, 17 Misc. 302, 18 Misc. 423, 40 N. Y. S. 360, 41 N. Y. S. 1056. Contra, Bank of Gallipolis v. Trimble, 6 B. Mon. (Ky.) 599.

28 Dundee M. & T. I. Co. v. Hughes, 89 Fed. 182.

29 Hunt v. Columbian Ins. Co., 55 Me. 290; and see to the same effect,

Life Assoc. of America v. Fassett, 102 Ill. 315.

30 Kirwan Mfg. Co. v. Truxton, 1 Penn. (Del.) 409, 44 Atl. 427.

31 Stetson v. City Bank, 2 Oh. St. 167, 12 Oh. St. 577.

porations only.32 If expressly or by interpretation such a statute is passed including foreign corporations in its operation, its application to foreign corporations is constitutional. In such a case Mr. Justice Miller said: "The constitutionality of this act is denied; but no provision of the constitution of Wisconsin or of the United States is pointed out which is opposed to such legislation. It would on the contrary be a strange defect in the legislative power if under such circumstances a State could not frame laws which would enable her citizens to subject the lands of a corporation whose charter had expired to the debts which it owed to her citizens." 33

32 Marion Phosphate Co. v. Perry, 74 Fed. 425, 33 L. R. A. 252; Fitts v. National Life Assoc., 130 Ala. 413, 30 So. 374; Olds v. City T. S. D. & S. Co., 185 Mass. 500, 70 N. E. 1022; Rodgers v. Adriatic Ins. Co., 148 N. Y. 34, 42 N. E. 515; Hammond v. National Life Assoc., 69 N. Y. S. 585, 168 N. Y. 262, 61 N. E. 244; Wamsley v. H. L. Horton & Co., 12 App. Div. 312, 42 N. Y. S. 767.

33 McGoon v. Scales, 9 Wall. 23, 19 L. ed. 545.

APPENDIX.

The object of this Appendix is to exhibit in tabular form such information as to the relative merits of the corporation laws of the several States as can be put into so small a compass. A few of the States are omitted from the Table; most of them because they impose a double liability on stockholders, and were therefore not thought to be of especial interest; one or two because, owing to the enormous franchise taxes assessed, they were not believed to be entitled to consideration.

A few remarks may be made upon the Table. Some spaces have been left blank, others filled with a query. These are cases where the statutes seem to leave the question doubtful. The danger of error in such a Table is great, and it should be used not as an authoritative statement of the law, but merely as a guide to State laws which may be deemed worthy of investigation.

Most of the columns need no explanation. The brief statement of the amount of incorporation and franchise tax is necessarily only a rough approximation to the exact amount of the tax. It will be observed that the 17th column, stating the existence or otherwise of a tax on the corporate excess, has the most important bearing on the real amount of taxation imposed on domestic corporations; since a tax, at the current rate, upon the entire valuation of the corporation, including its intangible assets, may be much greater in amount than a franchise tax would be.

In several States there are special provisions for manufacturing and mining companies. These have not usually been tabulated. The provisions for banks, insurance companies, and public-service companies are not given.