in the record, rather than by its technical averments. The principal question, therefore, is, do the facts found by the court warrant a recovery on the part of the appellant? We have no hesitancy in saying that they do. In this state the rule is firmly settled that the property of an insolvent corporation is a trust fund for the benefit of creditors, and that no one creditor can lawfully take the property of such a corporation to the exclusion of another. This being true, it would seem that, for much stronger reasons, one who was not a creditor could not lawfully take it to the exclusion of creditors. And, as the capital stock of a corporation is impressed primarily with a trust for the benefit of its creditors, it follows that, if such capital stock is divided among the stockholders, leaving its debts unpaid, any person receiving any part of such capital stock is liable to contribute to the payment of such debts a sum equal to the value of the property so received by him. As is said by Mr. Thomp

son:

"Accordingly, when the property has been divided among the stockholders, a judgment creditor, after the return of an execution against the corporation unsatisfied, may maintain a creditor's bill against a single stockholder, or against as many stockholders as he can find within the jurisdiction, to charge him, or them, to the extent of the assets thus diverted." 3 Thompson, Corporations, § 2963.

In this state the receiver of the corporation whose property has been so divided is the proper party to bring such an action for the benefit of the creditors. Wilson v. Book, 13 Wash. 676, 43 Pac. 939; Watterson v. Masterson, 15 Wash. 511, 46 Pac. 1041.

These considerations would seem to be conclusive of the appellant's right to recover; but it is said that, under the facts shown, the respondent was not a stockholder, because

Opinion Per FULLERTON, J.

[36 Wash. of the agreement between himself and the promoters of the corporation above referred to. But we think this contention untenable. As between himself and such promoters, he was, doubtless, liable to surrender his interest in the corporation's stock held by him, on their payment to him of the value agreed upon; but, until that time came, he was, we think, a stockholder, as between themselves, and certainly he was such as between himself and a stranger dealing with the corporation without knowledge of this private agreement. If, however, this were not so, the respondent's liability to the creditors would not be affected. He was not, himself, a creditor of the corporation. He was a creditor, perhaps, of Stevens and Pillsbury, but that fact would not authorize him to take the property of the corporation in payment of their debt to him. Nor will it do to say that they, as trustees, divided the corporation's property among themselves, and then paid their debt to him out of their own property. Were the respondent an innocent purchaser of the corporation's property after it had been so divided, he might possibly claim non-liability for want of notice, but, unfortunately for his claim, the respondent had knowledge of the entire transaction. By the very terms of his agreement with the other stockholders, he could displace them as trustees whenever he saw fit, and no debt could be created without his consent. It would be the height of injustice and inequity to allow him, after consenting to an indebtedness for more than the property was worth, to take all of the property to the exclusion of such debts.

On the whole, therefore, we think the respondent should be held liable, up to the amount of money received by him from the sale of the property of the corporation, for all of its debts against which it can make no defense. The judg

ment of the lower court is reversed, and the cause remanded, with instruction to enter a judgment in accordance with this conclusion.

MOUNT, C. J., and HADLEY and DUNBAR, JJ., concur.

36 651

[No. 5403. Decided January 30, 1905.]

THE STATE OF WASHINGTON, on the Relation of Gordon Mackay, Appellant, v. A. A. PHILLIPS, as Treasurer of Thurston County, Respondent.1

COUNTIES-SALE OF COUNTY PROPERTY-NOTICE FIXING MINIMUM PRICE-POWER OF COMMISSIONERS. Under Laws 1903, p. 73, providing that the county commissioners may order property sold when they deem it for the best interests of the county, they have power to order a sale fixing a minimum price below which bids will not be received; and were it otherwise the restriction could not be treated as surplusage, and a sale for a less sum upheld, since the board did not exercise its discretion to order an unqualified sale.

Appeal from a judgment of the superior court for Thurston county, Linn, J., entered May 24, 1904, upon granting a motion for a nonsuit, denying an application for a writ of mandate to compel the county treasurer to issue a deed of county property. Affirmed.

Israel & Mackay, for appellant.
Frank C. Owings, for respondent.

RUDKIN, J.-Some time prior to the 13th day of April, 1903, the county of Thurston acquired title to lots 5 and 6, block 24, Sylvester's Plat in the city of Olympia, through the foreclosure of delinquency certificates and a tax sale. On the above date the board of county commis1Reported in 79 Pac. 313.

e40 504

sioners of said county made an order directing the county treasurer to sell the property above described at public auction, to the highest and best bidder for cash, at not less than the appraised value thereof, which was stated in the order of sale to be $1,200 on lot 5, and $1,275 on lot 6. On the 28th day of April, 1903, the county treasurer gave notice, as required by law, that he would sell the above described property at a time and place therein stated, to the highest and best bidder for cash, and that no bid would be received for less than the appraised value, which was set forth in the notice of sale. At a time to which the sale was regularly adjourned, the relator, Mackay, bid the sum of $250 in cash for each lot above described, he being the highest and best bidder. The treasurer refused to receive the bid, or to execute a tax deed for the property, for the reason that the sum bid was less than the appraised value. The relator then applied to the superior court of the county for a writ of mandate, requiring the treasurer to receive the bid of $500 on the two lots, and to execute a deed to the relator therefor. The writ was denied, and from the order denying the writ this appeal is taken.

The appellant contends that the board of county commissioners had no power to fix a minimum price below which the property should not be sold; that that part of the order of sale should be rejected as surplusage; and that it was the duty of the county treasurer, under the law, to sell the property to the highest and best bidder for cash, irrespective of the amount bid. We do not think that this contention can be sustained for two reasons.

Under the law of this state, Bal. Code, § 342, the board of county commissioners are intrusted with the care and management of the property and funds of the county. The act under which the order of sale in this case was made,

Laws 1903, p. 73, provides that a sale may be ordered "when in the judgment of the board of county commissioners they deem it for the best interest of the county to sell the same;" and that the treasurer shall give notice, stating the time and place and terms of sale. Under these statutes, we think that the board of county commissioners, in the interest of the public, have the power to fix a minimum price below which county property shall not be sold. Under any other view, the board, charged with the duty of managing, controlling, and selling county property, and conserving the public interest, would be compelled to stand idly by and see the property of the county sold at a sacrifice. We do not think that such was the intent of the law.

But were the law otherwise, it would not avail the appellant. If the board can only order the sale to the highest and best bidder, irrespective of the sum bid, they have never exercised the discretion vested in them, and the court cannot eliminate from the order, as made, important conditions and provisions, and construe it as an order which the board never intended to make. The board only made one order of sale, and, if that is not valid as made, it is not valid at all, and the courts cannot make an order for them.

For these reasons, the writ was properly denied.

MOUNT, C. J., and FULLERTON, HADLEY, and DUNBAR, JJ., concur.