— Tbe plaintiffs recovered a judgment against tbe defendant company, on wbicb an execution was issued and returned nulla bona. They thereupon moved for an execution against tbe defendant Foley under tbe provisions of section 2517 of tbe Revised Statutes of 1889. Upon tbe trial of this motion, there was evidence tending to show that Foley held two shares of stock of tbe par value of $5.0 each in tbe insolvent corporation, on wbicb be bad paid $10 and no more, and that be bad executed bis notes to tbe corporation for tbe residue. Tbe plaintiffs produced and surrendered tbe notes upon tbe trial of tbe motion. Tbe court thereupon ordered execution to issue against Foley for $90, and be took an appeal from this order.
Tbe errors assigned are numerous, but may be summarized as follows: First. That tbe subscription for tbe stock was conditional, and that a non-compliance with tbe conditions upon wbicb it was made rendered tbe subscription nugatory. Second. That tbe court erroneously admitted tbe stock book of tbe *44defendant corporation in evidence. Third. That the judgment is against the evidence.
Upon the trial of the motion, it appeared that the corporation was formed with a capital stock of $50,000, divided into one thousand shares of $50 each; but that, although the stock was all subscribed for, yet only a very nominal amount thereof was paid for in cash or its equivalent to the corporation. The defendant Foley claims that the payment of the fifty per cent, of the subscription by the subscribers was a condition precedent to a valid organization of the company, and that, such payment not being made, the company was never organized. Revised Statutes, 1889, sec. 2768. This argument loses sight of the fact that such a defense is inadmissible even as against the corporation itself or one claiming through it (McDermitt v. Donegan, 44 Mo. 85; Joy v. Manion, 28 Mo. App. 55), much less in a proceeding by a creditor who may hold the defendant liable even in cases where the corporation could not. Schaeffer v. Home Ins. Co., 46 Mo. 248; Skrainka v. Allen, 7 Mo. App. 434; s. c., 76 Mo. 384, 392; Morawetz on Corporations, secs. 767, 818. This disposes of the first error assigned.
The stock book of the corporation was admissible in evidence, not for the purpose of showing that the defendant Eoley was a stockholder of the corporation, but for the purpose of showing that he so appeared on the books o'f the corporation and was the proper person to proceed against, if it was shown aliunde that he was a stockholder. It was shown aliunde that he was a stockholder by showing that he bought two shares of stock in the corporation, and received certificates therefor from the secretary, which he still held when the execution against the corporation was returned nulla lona. The second assignment of error, therefore, is equally untenable.
*45We might disregard the third assignment as being too vague, but will dispose of it, since by the cases cited under that head the defendant evidently intended to raise the proposition, that the two shares issued to him were an over-issue of stock, and hence could not constitute him a stockholder. Morawetz on Corporations, sec. 840; Beach on Corporations, sec. 733. The question arises in this manner. It appeared from the stock book of the company offered in evidence by the plaintiff that the names of the original subscribers appeared thereon for the full amount of the capital stock of the corporation, and in addition thereto the names of sixty or seventy other persons who had subsequently taken stock to the amount of $7,800 in the aggregate. Among the latter the appellant’s name appeared as that of the stockholder of two shares. Had the proof stopped there it would have raised a doubt as to the validity of this judgment, because it would have had a tendency to show an over-issue of stock beyond the amount which the corporation was authorized to issue, the over-issue consisting of these $7,000 or $8,000 in shares. But the defendant read the deposition of the secretary of the corporation, from which it appeared that for $23,750 of the stock taken by the original subscribers no certificates had ever been issued, or that, if issued, they had been surrendered to the corporation in conformity with a previous understanding.
Now an arrangement by which a stockholder releases his shares to the corporation may be valid as between himself and the corporation, and yet invalid as to creditors who seek to enforce his statutory liability. Thompson’s .Liability of Stockholders, see. 205. Such surrender and reissue, therefore, create in no sense an over-issue. If the shares were surrendered to the corporation under a contract valid between it and the shareholder, and it sold them to another share-*46holder, he became liable to creditors pro tanto. Whether the former shareholder became discharged pro tanto must depend, as we decided in Ollesheimer v. Thompson Mfg. Co., 44 Mo. App. 172, upon the completeness of the substitution and the good faith of the entire transaction. There is, therefore, no merit in this assignment. Seeing no error in the record, the judgment is affirmed.
Judge Biggs concurs; Judge'Bond dissents.