I dissent from the order denying a rehearing of this cause. In my opinion the whole merits of the case are bound up in the question whether it is true, as found by the trial court, that the assets of the old corporation which were transferred to the new corporation in exchange for forty thousand dollars in bonds and 12,250 shares of its stock, were, in fact, or in the honest judgment and estimation of the parties to that transaction, equal in value to the bonds ($40,000) and the par value of the shares ($122,500). If they were of that value, or honestly believed to be of that value, it is not only lawful, but strictly just, to assess the remaining 7750 shares of subscription stock exclusively until they have contributed to the capital of the company as much per share as the 12,250 shares have contributed, viz.: ten dollars a share. In the opinion of the court it is said that the finding on this point is sustained by the evidence. I dissent from that view. I cannot discover in the record any substantial evidence that the assets of the old corporation were actually worth more than forty thousand dollars — worth, in other words, any more than the value of the bonds issued to Samuelson and his associates in the old corporation. Nor do I find any evidence that in the honest judgment and estimation of any of the parties, they were worth more than fifty thousand dollars. The statement, therefore, that the 12,250 shares issued to Samuelson in trust for himself and *Page 75 his associates in the old corporation had been fully paid was a fiction. They were certainly not fully paid, and if anything was paid on them, either in fact or according to any reasonable estimate of the value of the assets of the old corporation, it was a very small fraction, and probably less than ten per cent of their par value.
Samuelson, however, does not appear to have been defrauded. He was himself a consenting party to the statements recorded in the books of the corporation to the effect that the 12,250 shares of stock issued to him as trustee, had been fully paid. Why he chose to turn over his portion of those shares to Brown, Freeman, and Entler is unexplained, and in the absence of any complaint from him is immaterial. Aside from the stock, he received in bonds, the full value of his interest in the assets transferred to the new corporation, and he, if a party here, would have no right to complain of the court for refusing to violate the constitution (art. XII, sec. 11) and the statute (Civ. Code, sec. 359) by treating as fully paid his 7690 subscription shares, upon which, admittedly, only a small percentage of their par value has ever been paid.
But in my opinion any bona fide holder to whom Samuelson's subscription shares have been transferred for value has a right to ask a court of equity to enjoin the sale of such shares to satisfy an assessment levied upon them exclusively, when it is made to appear that a large part of the so-called full paid shares remain in the hands of those who took them with full knowledge that little or nothing had in fact been paid for them. The decree of the court should have been based upon the real character of the shares which the defendants are seeking to exempt from assessment, and not upon the fictitious character which they have chosen to ascribe to them. If there are any innocent holders of these exempted shares who have paid value for them on the faith of the recorded statements that they were fully paid, they perhaps might claim the exemption, but those who took them with full knowledge of their fictitious character, or gratuitously, are in the view of equity, liable to the same assessments as the plaintiffs. *Page 76