[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 370 The appellants' intestate was the minority holder of a large amount of the capital stock of the Houston and Texas Central Railway Company which will be called the Houston Company. The respondent Southern Pacific Company, indirectly and through its control of other corporations, was the holder of a majority of the stock of said company. In substance, the appellants claim upon this appeal that the Southern Pacific Company on a foreclosure sale of the property of the Houston Company under and in accordance with a re-organization plan to which the former company was a party, acquired property, to wit, the capital stock of the re-organized company, which because of its relation as majority stockholder it should be decreed to hold as trustee for the proportionate benefit of the appellants as minority stockholders, and that since upon uncontroverted facts this relief has been denied a new trial should be granted.
Before reaching the merits of this claim appellants are compelled to avoid what purports to be a unanimous affirmance *Page 373 by an Appellate Division of a judgment dismissing their complaint upon the facts. This they seek to do by the argument, in the first place, that because of special circumstances the decision of the Appellate Division is not to be regarded as unanimous, and, secondly, that even if the decision be regarded as unanimous, the decision of the trial court shows that it did not pass upon the issues involved in this action, and they are, therefore, still open for consideration by this court.
I think that the appellants must fail in their contention upon these latter points. But if this is not so, I think that they must fail upon the merits upon this appeal, for the reason that their present claims to relief are based upon a theory so absolutely and widely at variance with that upon which their action was commenced and tried that we cannot make them a basis for a new trial.
In order that we may consider the questions of law which are involved, it will be necessary to make a review of the facts, which at best will be somewhat extended, although there is practically no dispute concerning them.
The Houston Company was the owner of a railway consisting of three divisions, with rolling stock, and also the beneficiary of extensive land grants. It had executed to various trustees seven mortgages securing nearly $20,000,000 of bonds. It also had a floating indebtedness of about $3,000,000. Most of these mortgages — and the prior ones — covered respectively only one or two divisions of the road. None of them, with the exception of one securing an inconsequential amount of bonds, contained express provision for foreclosure and sale for the entire principal amount of bonds upon a default in payment of interest or of other provisions short of a default in the payment of said principal, but they did contain provisions that the trustee might enter and take possession of the road until satisfaction was secured of payments in default. The road failed to meet its obligations under these mortgages, and foreclosure of several thereof was commenced. The company served answers, taking advantage of the provisions of the mortgage, which prevented a *Page 374 sale for the entire principal amount of the bonds. In addition suit was commenced against the company on a large amount of floating indebtedness and receivers therein appointed. In short and without unnecessary recapitulation of all the details, the affairs of the road were in a most unfortunate and much confused condition, with a practical deadlock between various conflicting interests which prevented a solution and betterment of the situation.
Under these circumstances a re-organization agreement was entered into between the Southern Pacific Company, which, as I have already stated, was indirectly the majority holder of the stock of the Houston Company, the bondholders secured by the various mortgages referred to and various other parties, the Houston Company itself and plaintiffs' intestate not being parties thereto. This agreement in its general outline provided for a foreclosure and sale of the land and railroad property belonging to the Houston Company, and the transfer of this property to a new corporation to be organized, and which should issue bonds to replace the old ones outstanding, of which latter, however, the principal amount and rate of interest should be scaled down, and the execution of mortgages upon the railroad property and lands to secure all or part of these new bonds. Said agreement also provided for the issue of $10,000,000 of capital stock of the new corporation, and it is in connection with this new capital stock that the appellants now make complaint against the Southern Pacific Company and seek to hold it as a trustee for their benefit.
It was provided in respect to this stock as follows:
First. That the stockholders in the old company respectively should be entitled to a pro rata share of the capital stock of the new company upon payment of a like respective pro rata amount of the money necessary to pay the re-organization expenses, and the amounts to be paid to old bondholders in connection with the reduction of the principal and rate of interest of their bonds, and the $3,000,000 of floating indebtedness. *Page 375 Second. That if and so far as the stockholders did not see fit to exercise this privilege, the floating debt creditors should be entitled to their respective pro rata shares of the new capital stock upon payment of like respective pro rata shares of the same re-organization expenses and the amounts to be paid old bondholders as above indicated.
Third. That if and in so far as old stockholders and floating debt creditors did not avail themselves of the right to take new capital stock, the Southern Pacific Company should be entitled to take the same, providing for the expenses of re organization and the payments to old bondholders above mentioned.
It will be noticed that the substantial difference between the rights of the Southern Pacific Company and of plaintiffs' intestate in respect to acquiring stock in the new company was that the former was not compelled to provide for the payment of the floating indebtedness of the old company, while the latter was compelled to contribute thereto. It is, however, to be noted in this connection as bearing somewhat upon the merits that the Southern Pacific Company was to guarantee the new bonds to be issued, and that it was the majority stockholder, and in control of corporations holding about $2,300,000 of the $3,000,000 of the floating indebtedness.
After this agreement was made suits upon remaining mortgages were commenced against the Houston Company, and such proceedings taken in them and in the old suits that thereafter, without opposition upon the part of said company, upon a trial had in the United States Circuit Court of Texas, a judgment of foreclosure and sale was rendered as upon a default upon the principal of the outstanding bonds for a sale of the entire property of the mortgagor, including the lands granted to it. These lands were bid in by the defendant Olcott, and thereafter a new corporation was formed and the provisions already recited with respect to the transfer to it of the property of the old company, the issue of new bonds and the execution of new mortgages were carried out. The defendant Olcott still holds title to so much of the lands as *Page 376 have not been sold, and as seems to be assumed upon all sides, in trust for the benefit of the new corporation if there be any equity over and above the mortgages executed thereon.
Neither the minority stockholders of the old company nor the floating debt creditors exercised the privilege secured to them respectively under the re-organization agreement of taking stock in the new corporation, and the result was that the Southern Pacific Company secured the entire issue upon the terms already recited. While not especially material, it appears that the amount which appellants' intestate would have been compelled to contribute per share as a condition of taking the new stock would have been a substantial sum.
The important facts developed down to this point in the history of the railroad company and of subsequent proceedings which are especially emphasized in the present claims of the appellants, are that the Southern Pacific Company was indirectly the majority stockholder and in control of the Houston Company; that the re-organization agreement made by the Southern Pacific Company and others which contemplated a foreclosure and sale was followed by the cessation of opposition upon the part of the Houston Company to such foreclosure and sale, and subsequently by a sale of all of its property; that the Southern Pacific Company by such re-organization agreement secured to itself upon more advantageous terms than were offered to other stockholders, the right to acquire all the capital stock of the new railroad company and which capital stock represented all of the rights and equity which the old company and its stockholders had in the property originally belonging to it, and which property, by means of the foreclosure and sale, had been transferred to the new company which issued the capital stock.
Thereafter this action was commenced, and because of the view already indicated that it does not comprehend within its scope the cause of action by minority stockholders to impress a trust upon property acquired by a majority stockholder which appellants are now urging, it becomes necessary to consider at some length the complaint. *Page 377
The latter is entitled in behalf of plaintiffs' intestate and all other stockholders similarly situated. It alleges the ownership by the Houston railway corporation (called in the complaint "Company No. One") of the various properties involved and the control of said company by the Southern Pacific Company and the former defendant Huntington; the formation of a scheme and conspiracy by these persons and other confederates, the various defendants, to acquire for themselves and the Southern Pacific Company said properties; that in pursuance of this scheme and conspiracy various acts were done and especially certain bills for the foreclosure of mortgages were filed, defenses available to the company abandoned, it being under the control of the conspirators, and a decree finally entered for the sale of all its properties in disregard of the rights of the plaintiff and other stockholders, and which decree was "non-judicial and void as against the defendant company number one and the stockholders thereof;" that in pursuance of the scheme and conspiracy the properties of the company were sold under this decree and bid in by various defendants; that after said sale and in pursuance of the unlawful scheme and combination a new company was organized to which was conveyed part of the property of the company number one bid off as aforesaid, and various mortgages were executed upon the property bid off to cloud the title of company number one, and the entire capital issue of the new company was turned over to the control of the Southern Pacific Railway Company, Huntington and other confederates; that some of the defendants still held title to the lands and property bid off but that they had no right thereto and held the same for the benefit of and in equity and right as trustees for the said company number one. Said complaint then contains allegations of a demand by plaintiffs upon the directors of said company number one "to take action to remove the cloud upon the title to said lands caused by the said trust indentures, to have them declared invalid and to reclaim said lands to and for said company number one and to compel an accounting *Page 378 by said Olcott (one of the defendants) of and for the said lands and to compel him to convey the said lands to said company number one and to obtain the relief sought to be secured by this action," and that "said directors have failed, neglected and declined to commence any action or any proceeding whatever, and that they are acting with and in the interests of defendants," etc.
The prayer for relief is especially significant as indicating the character of the action. It demands judgment that each one of certain defendants be decreed "to hold and possess for the benefit of and as trustee for the Houston and Texas Central Railway Company (said company number one) and its stockholders" the land acquired "under the so-called decree of foreclosure and sale;" that various defendants be required to account for all proceedings in connection with the lands bid off or the sales thereof and the proceeds received from such sales and be directed to pay over to the said Houston and Texas Central Railway Company (said company number one) all proceeds received and to convey to said company all lands remaining unsold; that the mortgages executed by various defendants upon the property bid off upon the foreclosure sale be declared void and "a cloud upon the title of the Houston and Texas Central Railway Company (said company number one)" and that they be canceled and discharged of record; that all rents, issues and profits realized be paid over and all lands remaining unsold be conveyed by the various defendants to said Houston and Texas Central Railway Company (said company number one).
The nature and character of the cause of action set forth in this complaint are perfectly well defined and familiar. It was one by stockholders in behalf of a corporation which on account of hostile control was unable or unwilling to act, against various defendants who by fraud and conspiracy had stripped the corporation of its property, to have declared illegal and void various steps and proceedings by which this process had been accomplished and to compel a restitution to the injured corporation of the property and proceeds thereof *Page 379 which had been taken from it. It was distinctly and decisively a stockholder's action in behalf of and for the benefit of the corporation.
It is also apparent as it seems to me that an essential element in plaintiffs' cause of action was the alleged fraudulent and collusive character of the decree of foreclosure and sale under and by which the property of the original company was taken from it and transferred and passed to the various other parties and defendants, and which decree is especially considered in the decision of the trial court next to be referred to.
This decision in favor of the defendants upon the issues raised by the various answers to this complaint was in the so-called short form. The grounds stated for such decision were in effect that the United States Circuit Court "had complete jurisdiction of the subject-matter (of said foreclosure sale) and of the parties, and that its decree and the sale thereunder were final and conclusive as against all the parties of record in that action and as against the plaintiff herein and all others similarly situated; that the purchasers at such sale acquired a good and valid title to the property so sold, which title was not and is not subject to any trust for the benefit of the plaintiff or of other stockholders of said railway company; that such decree was made and the proceedings therein were had without fraud and collusion or wrongful conduct on the part of the defendants or any of them."
It appears that upon appeal to the Appellate Division an opinion was written by one of the justices in favor of affirmance of the judgment appealed from and upon somewhat different grounds than those adopted by the trial justice, and that while all of the remaining justices concurred, two of them did so only in the result. The order and judgment as originally entered did not indicate that the decision was unanimous, and thereafter, by a court composed in part of different justices than those who took part in the decision, an order was made amending the order and judgment theretofore entered so as to show that the decision was unanimous. *Page 380
With this statement of what seem to be the important facts gathered from a voluminous record, we reach a discussion of the questions of law involved, and which already have been briefly outlined.
The assertion by the appellants that they are not confronted by a unanimous decision rests upon the propositions, first, that a concurrence in the result by one or more justices does not make a unanimous decision; and, secondly, that the Appellate Division at a subsequent session with different justices sitting could not determine that each individual justice taking part in the original decision concurred therein and direct an amendment of the order and judgment so as to show unanimity in the decision; moreover, that such amendment altered the scope and effect of the original decision.
We have had occasion so frequently to pass upon the first of these propositions adversely to the views of appellants that it is not necessary to discuss it now. We also have had occasion to decide that at a later term of the Appellate Division, composed in part of different justices, an amendment may be made of an order and judgment of the court so as to show that the decision was unanimous, and the present argument does not persuade me that there is any objection as matter of law to such amendment upon proper facts. It is requisite that there should be presented to the court sufficient evidence to convince it that as a matter of fact the decision was unanimous by the concurrence of each individual justice, and this fact being established by proper means, I see no more difficulty in such instance in so amending the records of the court as to correct an inadvertence and make them conform to the truth, than would arise in the other cases conceded by counsel to present proper grounds for similar relief.
The next claim of appellants to be considered relates to the form and effect of the decision made by the trial court. This claim is that a decision in the short form does not so far have the effect of a general verdict that it is to be affirmed if a single ground can be found upon which it may rest; that inasmuch as the Code provided that a decision in such form *Page 381 should concisely state the grounds of the decision, we may look beyond the decision itself to such grounds and if they fail to support the decision or show that the court has not passed upon any or all of the real issues involved, such decision should not be allowed to stand; that in this case the main ground stated by the trial court for its decision is that the judgment of foreclosure and sale already sufficiently described and the sale thereunder were valid and effective; that the validity of that judgment is not a sufficient ground for deciding this case against appellants, but that their cause of action is independent of its validity, and that, therefore, and inasmuch as there are material issues which have not been passed upon, the appellants are entitled to a new trial within the principles laid down inMiller v. N.Y. N.S. Ry. Co. (183 N.Y. 123); that the examination of these questions is not barred by a unanimous affirmance. Without considering or deciding how far we should adopt appellants' views that the unanimous affirmance of the decision of the trial court does not preclude us from examining the statement of the grounds given for the latter in order to determine whether they do sustain it, and from giving relief if they do not, I think that an answer may be made upon the merits to appellants' contention with respect to the sufficiency of the grounds stated for the decision.
It is necessary to revert briefly to the complaint and to remember that as outlined thereby this action was brought in behalf of the Houston Company to recover back to it property and the proceeds of property which had been secured from it by the defendants through fraud and conspiracy. While various other steps in this fraudulent conspiracy are alleged, the main and absolutely essential one was the judgment of foreclosure and sale whereby the company was divested of the title to the property in question, and the same was transferred and passed to the various defendants. If plaintiffs were correct that this judgment was brought about by fraud and was part of a conspiracy to defraud the company and its stockholders of property which belonged to them, then it may be conceded, certainly for the sake of the argument at *Page 382 this point, that such judgment, however regular and valid upon its face, would not be a bar to success under the complaint which was filed. Upon the other hand, if that judgment was valid, honest and in all respects binding and effective, I do not see how plaintiffs could reach beyond it to recover back to the company the property which had been purchased under it. The question whether it was fraudulent and collusive or honest and valid was made an issue of fact in the case. The ground or finding stated in the decision was to the effect that the court had full jurisdiction of the subject-matter and of the parties; "that said decree was made and the proceedings therein were had without fraud, collusion or wrongful conduct on the part of the defendants or any of them;" and "that the purchasers at such sale acquired a good and valid title to the property so sold, which title was not and is not subject to any trust for the benefit of the plaintiff or of other stockholders of said railroad company."
It seems to me that this was the statement of a sufficient reason for deciding that the plaintiffs could not succeed in the action which they had brought.
With the disposition of the foregoing questions we are brought to the final one, whether appellants in this action can urge any such claims to relief as those which they make the basis of their appeal. If, under their complaint, they are entitled to adopt the theory and urge the claims to relief which they now do adopt and urge, then certainly they may say with much force that the real issues which they are presenting do not appear specifically to have been passed upon. And, therefore, my final duty will be to demonstrate that their present theory and claims are so at variance with their complaint that they cannot be asserted in this action, and, therefore, cannot successfully be urged as a reason for reversing the judgment and granting a new trial to pass upon them.
To recapitulate somewhat, if a careful consideration and analysis has enabled me to correctly appreciate the very elaborate and able argument made in behalf of appellants, their present contention in effect is that the Southern Pacific *Page 383 Company was a majority holder of stock in the original Houston Company; that as such it procured a foreclosure and sale of the property of that corporation; that as a party to the re-organization agreement which accompanied that foreclosure and sale it secured to itself upon more advantageous terms than were permitted to the minority stockholders the right to acquire the capital stock of the new Houston Company and which capital stock represented all of the equity and rights which the old company and its stockholders had in the property which was sold and transferred; that as a majority stockholder said Southern Pacific Company owed such duties to the minority stockholders, including appellants' intestate, that now it may be compelled to allow them to share with it in the profits and advantages which it has derived from the sale of the property and the acquisition of the new capital stock. The defendant Olcott as the present holder of the title to the land grants may be dismissed from consideration, for the capital stock acquired by the Southern Pacific Company is assumed to represent any equity in that land.
In this contention the appellants have abandoned their complaint of fraud and collusion and conspiracy amongst the defendants against the corporation, whereby the latter has been stripped of its property, and inferentially they assume the validity of these steps and transfers as against the corporation because they insist upon sharing with the Southern Pacific Company the advantages which it has secured thereby. In their brief they specifically affirm the validity and binding effect of the judgment of foreclosure and sale and do not dispute that a good and valid title to property was obtained thereunder. In their own words "The plaintiffs seek — nothing more is necessary for them upon the present appeal — to impress upon the interest of the Southern Pacific Company in the shares of the new company and in the lands a trust obligation to account for profits to its associate stockholders."
Thus the action now outlined and proposed is simply one by the appellants as minority stockholders in their own interest directly and solely against the Southern Pacific Company *Page 384 as a majority stockholder based upon an alleged trust relationship between them to compel the latter to account directly to the former for profits and advantages which it now holds to their exclusion in violation of such relationship. It is true that there may be found here and there in the briefs some chance expression respecting the corporation and its rights, but interpreted as a whole the claims of the appellants bear the construction and are of the nature indicated.
Is there any place for doubt that such cause of action and such form of relief lie far outside the nature and limits of an action brought in behalf of a corporation against many defendants as alleged workers of fraud and conspiracy whereby the corporation has been stripped of its property, to annul and get rid of the wrongful proceedings and collusive transfers and to recover back to the corporation itself the property of which it has been unlawfully deprived?
It is urged that all of the facts have been proven which sustain appellants' present claim and that a court of equity will not be technical or narrow in administering justice according to the rights of the parties upon all the facts proven. Of course I do not lose sight of these well-settled principles. But the facts which are now relied upon, so far as we are advised or have been able to ascertain, were properly admitted under a complaint which alleged a certain cause of action and without amendment or notice of any new theory of the action which was to be tried and the trial court has made a decision which, as it seems to me, passes upon the issues which were framed by that complaint and the answers to it. Under such circumstances there must be limitation to the power of the court to give redress upon the facts which have been proven, and I am aware of no authority which would permit it to utilize facts introduced under a complaint to sustain one well-defined cause of action as a basis upon appeal for an entirely distinct and different cause of action. Such a course would be unjust and it is fully settled that it may not be followed.
The views which have been thus expressed lead to the conclusion that the judgment should be affirmed, with costs. *Page 385