Turney v. Morrissey

HALL, J.

This is an appeal by defendants from an order directing that a peremptory writ of mandate issue, commanding defendants, as the trustees of the Anvil Land and Stock Company, a defunct corporation that had forfeited its franchise as a corporation for failure to pay its license fee

(Kaiser Land & Fruit Co.

v.

Curry,

155 Cal. 638, [103 Pac. 341]), to execute a deed to plaintiff, as the owner of all the issued stock of the corporation, of a certain piece of land, comprising all of the assets of the corporation.

The record discloses without dispute that the forfeiture of the charter resulted through the neglect of plaintiff to pay the license-tax or fee as he had agreed to do. At the time of the forfeiture he held an option .to buy from one of the defendants all the shares of issued stock but two.

It is alleged in the petition, among other things, that plaintiff is the owner of all the issued stock of the corporation and that sarid corporation is not indebted, and that upon demand made by plaintiff defendants, as such trustees, had refused to execute a conveyance of said assets to plaintiff, and that plaintiff has no plain, speedy, or adequate remedy against defendants in the ordinary course of law for their refusal to convey said assets to plaintiff.

We think plaintiff has mistaken his remedy.

Mandamus

will not lie where the petitioner has a plain, speedy, and adequate remedy in the ordinary course of law. The allegation that he has not such a remedy is but a conclusion of law, and does not avail him where the case is of such a character that such a remedy does exist under the law.

Upon the forfeiture of the charter of a corporation for failure to pay its license-tax or fee, the directors in office at the time of such forfeiture become at once and

ipso facto

trustees of the corporation and its stockholders for the pur

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