[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 344 Plaintiffs alleged and proved facts sufficient to show that the defendant trustees came rightfully into possession of the personal property in question and that title to the personalty and real estate was rightfully transferred into their names. As against those trustees, to maintain the first cause of action set up in the complaint it was essential for the plaintiffs to prove, as they alleged, that the instrument under which possession of the securities was given and the transfers were made was not executed by creditors holding seventy-five per cent in amount of the claims against the debtor or to show that the transfers were voidable for other reasons. This evidence was lacking.
The defendant purchasers acquired upon the attempted sale of a part of the securities no better title than that held by the trustees in view of the notice which the plaintiffs gave to such purchasers prior to the sale. Upon *Page 347 the record in the instant case, to sustain the purported sale such purchasers were required to establish that conditions precedent to the trustees' acquiring a lien and power to transfer good title had been complied with. There is no evidence of waiver or estoppel by or against plaintiffs. The essential findings upon which the decree in favor of the defendants upon the merits was based were without evidence to support them.
Upon the question as to whether the causes of action set up in the complaint were subject to the provisions of the six-year Statute of Limitations we do not pass. These causes of action did not arise until after the expiration of a reasonable time subsequent to the date of the creditors' agreement within which a majority of creditors of the debtor in amount must sign, the discovery by plaintiffs of their failure to sign, and a demand for a reassignment and return of the shares of stock and for the execution and delivery by the trustees of a deed to the realty and their refusal to comply with the demand. The date when such a demand was made and refused has been found to be July 12, 1935. The action was commenced on October 9, 1935.
The judgments should be modified by striking therefrom the words "upon the merits" from the clause thereof dismissing the complaint, and as so modified should be affirmed, without costs.
LEHMAN, O'BRIEN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur; CRANE, Ch. J., taking no part.
Judgment accordingly. *Page 348