The forfeiture and sale must be made in the manner prescribed,85 and provisions as to notice of the forfeiture or sale must be strictly followed. The right to postpone the date originally fixed for the sale depends upon the terms of the charter or statute.87 Under some statutes the directors may elect to abandon the forfeiture proceedings after they have reached a certain stage, and to proceed to recover the amount of the assessment.88 Collusion among the bidders to refrain from competitive bidding avoids the sale, where it results in a sale at a grossly inadequate price.89 In the case of assessments of national bank stock to make good impairments of capital, it has been held that a sale is invalid. and cannot be enforced by the buyer, when the price at which the stock is bid off is less than the amount of the assessment.90 In Utah assessments on paid up stock cannot be enforced otherwise than by a sale of the stock unless the articles of incorporation distinctly so provide. Gary v. York Min. Co., 9 Utah 464, 35 Pac. 494. The stockholder has the option either to pay the assessment or to forfeit his stock, and cannot be sued for the amount of it. Dotson v. Hoggan, 44 Utah 295, 140 Pac. 128. See also Lindsey v. Pasco Power & Water Co., 203 Fed. 251, where an assessment levied on the stock of a Washington corporation was held not to have imposed a personal liability on a stockholder. And see § 658, supra. 85 Bottle Mining & Milling Co. v. 9 Cal. App. 527, 99 Pac. 994; Kern, Jensen v. Northwestern Underwriters' In the absence of a by-law to the contrary or a special provision in the charter, a forfeiture must be declared by duly elected directors and by the number required to conduct corporate business, egate and the directors cannot del their powers and duties in the premises. Jensen V. Northwestern Underwriters' Ass'n, 35 N. D. 223, 159 N. W. 611. In Joseph v. Davenport, 116 Iowa 268, 89 N. W. 1081, it was held that under provisions in the stock certificates the sale was to take place on the 10th day of the same month after default, and that no appraisement or advertisement was necessary. While the action of a ditch and water company in selling stock for nonpayment of assessments may be void because the sale is not conducted in conformity to law, the stockholder, nevertheless, will not be given a decree enjoining the corporation from stopping his water irrespective of the fact that he has not paid his assessments where the by-laws provide that water may be withheld for such nonpayment. Curtin v. Arroyo Ditch & Water Co., 147 Cal. 337, 81 Pac. 982. See also § 664, supra. 86 Imperial Land & Stock Co. v. Oster, 34 Cal. App. 776, 168 Pac. 1159. See also § 664, supra. The corporation is sometimes given the right to purchase the stock at the sale in default of other bidders.91 Provisions as to what must be done with the stock after its purchase by the corporation must be complied with in order to give it title.92 It is sometimes expressly provided that the stock shall be nonassessable while it remains the property of the corporation, and that no dividends shall be declared thereon.93 Where stock is legally forfeited the owner ceases to be a stockholder in the corporation, and is not liable for any further assessments.95 tal shall rest equally on all the shareholders. If some pay their pro rata in full, and the purchasers of the stock of delinquents pay less, then such purchasers hold stock in a corporation on better terms than those who paid in full; and, again, a portion of the impairment which it was the only object of the assessment to make good, remains, and the evident purpose of the law is thus defeated. Moreover, the statute imperatively states that a sufficient amount of the delinquent's stock shall be sold to make good the deficiency, and the balance, if any, returned to such delinquent shareholder. The law here provides for the disposition of the 'surplus' arising from the sale, provided the stock sells for more than the assessment, but, of course, could not entertain the possibility of a deficiency, in view of the plain provision that a sufficient amount of the stock must be sold to make good the deficiency. The law, in effect, makes the amount due by each delinquent shareholder, under the assessment on his stock, 'an upset price' which it must bring when sold under the provisions of the statute; and this bidders are presumed to know." Merchants Nat. Bank v. Fouche, 103 Ga. 851. 91 Civ. Code, § 343; Lemoore Canal & Irrigation Co. v. McKenna, 163 Cal. 736, 127 Pac. 345. 92 Under Civ. Code, $343, the amount of the costs, assessments, and charges must be credited upon the books of the corporation as paid in full, and the stock must be transferred to the corporation on its books. This provision is not directory, but is the measure of the corporation's power to acquire the stock. Lemoore Canal & Irrigation Co. v. McKenna, 163 Cal. 736, 127 Pac. 345. An agreement between the corporation and one of its directors that the latter shall purchase the stock, in default of other bidders, and hold it in trust for the corporation, and pay future assessments thereon, and that the corporation will repay his expendi tures in so doing, is void as being in violation of this provision and as being contrary to puble policy, and cannot be enforced by the corporation. Lemoore Canal & Irrigation Co. v. MeKenna, 163 Cal. 736, 127 Pac. 345. 93 Civ. Code, § 343; Lemoore Canal & Irrigation Co. v. McKenna, 163 Cal. 736, 127 Pac. 345. 94 His right and title as holder of the stock to any interest in the corporate property is thereby terminated. Weeks v. Silver Islet Consol. Mining & Lands Co., 55 N. Y. Super. Ct. 1, aff'd 120 N. Y. 620, 23 N. E. 1152. He cannot thereafter maintain a suit in behalf of the corporation against directors for losses due to their misconduct. Hanna v. Lyon, 179 N. Y. 107, 71 N. E. 778, modify. ing judgment 76 N. Y. App. Div. 224, 78 N. Y. Supp. 516. See also $665, supra. 95 Weeks v. Silver Islet Consol. Min. § 4277. Estoppel of stockholders; acquiescence. A stockholder may be estopped by his conduct from objecting to the amount of an assessment,96 or its validity,97 or to the validity of a sale of the stock for nonpayment thereof.98 And he may lose his right to object to irregularities in making the assessment,99 or in the forfeiture and ing & Lands Co., 55 N. Y. Super. Ct. 1, aff'd 120 N. Y. 620, 23 N. E. 1152. See also § 665, supra. 96 Boll v. Camp, 118 Iowa 516, 92 N. W. 703; Joseph v. Davenport, 116 Iowa 268. 97 Jones v. Bonanza Mining & Milling Co., 32 Utah 440, 91 Pac. 273. A stockholder may waive the objection that a statute authorizing assessments on paid up stock violates his constitutional rights, or may be estopped by his acts or his acquiescence from setting it up. Ireland v. Palestine, B., N. P. & N. W. Turnpike Co., 19 Ohio St. 369. A stockholder who pays an assessment cannot afterwards attack its validity. Callahan v. Chilcott Ditch Co., 37 Colo. 331, 86 Pac. 123. A stockholder who votes for or pays assessments cannot afterwards contend that they were illegal because at the time they were levied the capital stock had not been fully subscribed and paid up, as required by the statute. Callahan v. Chilcott Ditch Co., 37 Colo. 331, 86 Pac. 123. A stockholder who participates in a meeting at which it is voted to extend the life of the corporation, and in a subsequent meeting at which an assessment is voted, and who pays such assessment, is estopped to deny the existence of the corporation under its certificate extending its corporate life, and also its authority to levy such assessment. Callahan v. Chilcott Ditch Co., 37 Colo. 331, 86 Pac. 123. . A stockholder who assents to an increase of assessments on mining stock, pays such an assessment, and consents to the sale of his stock for subsequent ones, is estopped. Boll v. Camp, 118 Iowa 516, 92 N. W. 703. A stockholder who receives personal notice of an assessment cannot complain that notice was not published as required by the by-laws, where it has been the uniform custom of the corporation, acquiesced in by the stockholders, not to publish notice. Grand Valley Irrigation Co. v. Fruita Improvement Co., 37 Colo. 483, 86 Pac. 324. A director who votes affirmatively for the adoption of a resolution levying an assessment is estopped to question its validity because of defects or irregularities. Campbell V. Santa Maria Oil & Gas Co., 153 Cal. 282, 95 Pac. 39. Nor can he set up want of authority to make it. Mirage Irrigation Co. v. Sturgeon, 77 Neb. 175, 108 N. W. 977. A director, who is also president and business manager of the company, and who knows that it has been the uniform practice to levy assessments at meetings at which a majority of stock was not represented, and though a small amount of previous assessments remained unpaid, cannot complain of similar irregularities in assessing his stock. Hatch v. Lucky Bill Min. Co., 25 Utah 405, 71 Pac. 865. The burden of showing assent or acquiescence is on the corporation or other party seeking to hold him liable or to estop him from denying his liability. Ireland v. Palestine, B., N. P. & N. W. Turnpike Co., 19 Ohio St. 369. See also § 667, supra. 98 Boll v. Camp, 118 Iowa 516, 92 N. W. 703. And see § 667, supra. 99 Weniger v. Success Min. Co., 227 sale of the stock 1 by his laches, as where he fails to object until after a change of circumstances or conditions has arisen and the stock has greatly increased in value. But a stockholder or member of a corporation is not estopped to object to an assessment because previous unauthorized assessments have been paid. Nor can he be estopped by his promise to pay an assessment where the corporation has in no way changed its position because of it.4 The estoppel of a stockholder extends to those in privity with him, as, for example, to his assignee, at least where the assignee takes with knowledge of the facts. § 4278. Remedies in case of unauthorized or irregular assessments or forfeitures. If a corporation levies an assessment without authority to do so, and undertakes to forfeit shares for nonpayment, the stockholder may sue to enjoin the forfeiture," or, if the shares have been forfeited, he may sue to recover damages for the conversion of his stock, and recover the value thereof, or he may sue in equity to Fed. 548; Cheney v. Canfield, 158 Cal. 342, 32 L. R. A. (N. S.) 16, 111 Pac. 92; Jones v. Bonanza Mining & Milling Co., 32 Utah 440, 91 Pac. 273; Hatch v. Lucky Bill Min. Co., 25 Utah 405, 71 Pac. 865. And see § 667, supra. 1 Weniger v. Success Min. Co., 227 Fed. 548; Joseph v. Davenport, 116 Iowa 268, 89 N. W. 1081. And see § 667, supra. 2 Hatch v. Lucky Bill Min. Co., 25 Utah 405, 71 Pac. 865. In the case of mining stock, he must object at the earliest practicable time, and equity will not aid him if he remains passive and makes no objection until after it becomes apparent that the stock is of value. Joseph v. Davenport, 116 Iowa 268, 89 N. W. 1081. See also § 667, supra. 3 Atlantic Delaine Co. v. Mason, 5 R. I. 463. 4 Ossipee Hosiery & Woolen Mfg. Co. v. Canney, 54 N. H. 295. 5 Campbell v. Santa Maria Oil & Gas Co., 153 Cal. 282, 95 Pac. 39. 6 An assignee who takes with full knowledge of facts which estop his assignor is also estopped. Hatch v. Lucky Bill Min. Co., 25 Utah 405, 71 7 Indiana. Redkey Citizens' Natural Gas, Light, Fuel & Petroleum Co. v. Orr, 27 Ind. App. 1, 60 N. E. 716. Nebraska. Enterprise Ditch Co. v. Moffit, 58 Neb. 642, 45 L. R. A. 647, 76 Am. St. Rep. 122, 79 N. W. 560. New York. Moore v. New Jersey Lighterage Co., 57 N. Y. Super. Ct. 1. North Dakota. Porter v. Northern Fire & Marine Ins. Co., 36 N. D. 199, 161 N. W. 1012. Oregon. First Nat. Bank v. Multnomah State Bank, 87 Ore. 423, 170 Pac. 534. The remedy by an action at law for damages does not furnish as plain, speedy and adequate remedy as that afforded by a suit in equity for an injunction, and hence equity has jurisdiction, although an action for damages would lie. First Nat. Bank v. Multnomah State Bank, 87 Ore. 423, 170 Pac. 534. See also § 666, supra. 8 United States. Wilson v. Colorado Min. Co., 227 Fed. 721. California. Herbert Kraft Co. compel the corporation to recognize him as a stockholder. It is sometimes specifically provided by statute that a stockholder may recover back the stock sold in the case of defects or irregularities in the assessment, the notice of sale, or the sale, provided he first pays or tenders to the corporation, or the party holding the stock sold, the sum for which it was sold, together with all subsequent assessments paid by him and interest, and brings his action within a specified time.10 Stockholders who pay a void assessment may recover back from the corporation the amount so paid.11 If a member has been expelled from a nonstock corporation for nonpayment of an illegal assessment, he may in most jurisdictions institute mandamus proceedings to compel his reinstatement, or in some jurisdictions resort to other remedies.12 Bank v. Bank of Orland, 133 Cal. 64, 65 Pac. 143; Myers v. Chittyna Exploration Co., 20 Cal. App. 418, 129 Pac. 469; Ward v. California Celery & Produce Co., 15 Cal. App. 84, 113 Pac. 888. Colorado. See Grand Valley Irrigation Co. v. Fruita Improvement Co., 37 Colo. 483, 86 Pac. 324. Illinois. See Lewis v. Bidwell Elec. Co., 141 Ill. App. 33. Texas. Gresham v. Island City Sav. Bank, 2 Tex. Civ. App. 52, 21 S. W. 556. See also § 666, supra. As to the conversion of shares of stock and the measure of damages therefor generally, see § 3445 et seq., supra. 9 Herbert Kraft Co. Bank v. Bank of Orland, 133 Cal. 64, 65 Pac. 143. Equity has jurisdiction of a suit to declare void an assessment on stock of an irrigation company made in violation of the terms of the contract under which it was issued. Farmers' Pawnee Canal Co. v. Henderson, 46 Colo. 37, 102 Pac. 1063. He may sue in equity to compel a corporation which it has itself purchased at a sale under an unauthorized assessment to restore stock. Wilson v. Colorado Min. Co., 227 Fed. 721. The stockholder is not guilty of laches so long as he has no knowledge of the unauthorized assessment and forfeiture and no notice of facts which would put a person of ordinary prudence upon inquiry, and where he is guilty of no unreasonable delay after he discovers the facts. Wilson v. Colorado Min. Co., 227 Fed. 721. See also § 666, supra. 10 Cheney v. Canfield, 158 Cal. 342, 32 L. R. A. (N. S.) 16, 111 Pac. 92; Campbell v. Santa Maria Oil & Gas Co., 153 Cal. 282, 95 Pac. 39; Mantle v. Jack Waite Min. Co., 24 Idaho 613, 136 Pac. 1130, 135 Pac. 854. And see § 666, supra. 11 Huey v. Patterson, 26 Cal. App. Dec. 1064. Where an assessment made by the directors of a national bank is declared void after some of the stockholders have paid it, and the bank subsequently becomes insolvent and a receiver is appointed, the paying stockholders are entitled to be reimbursed out of the assets remaining after the payment of creditors before final distribution is made to all of the stockholders. In re Hulftt, 96 Fed. 785. 12 See § 3969, supra, |