primarily by bondholders with the concurrence and assent of stockholders and other creditors. In the one case, the new company ordinarily is liable for the debts of the old company, while in the latter case a reorganization in connection with a foreclosure sale ordinarily cuts off all rights of creditors except prior liens.32 So far as the effect of the reorganization is concerned, it is necessary to consider whether there is a new and independent corporation created, or whether the successor is merely a continuation of the old company under the same or a different name.33 In the former case and this embraces all reorganizations by foreclosure purchasers or other purchasers at a judicial or execution sale-,34 the new company, with certain exceptions,35 is not liable for the debts of the old company, while in the latter case the so-called new company, being in reality but a continuation of the so-called old company, is liable just the same as the old company would have been had it continued in existence. And in this last class, generally speaking, there are included all reorganizations where the rights of creditors are not cut off by judicial or execution sales, including, ordinarily, cases of mere reincorporation as well as reorganizations by stockholders or others without a judicial sale and without any provision as to creditors.36 In other words, a successor of an old company which has become defunct is ordinarily not liable for the debts of the old company where not merely a continuation of the old company; 37 and a new corporation is not liable for the debts of an old corporation merely because the former was organized to succeed the latter.38 32 National Foundry & Pipe Works v. Oconto City Water Supply Co., 105 Wis. 48, 59, 81 N. W. 125, and see SS 4984, 4988, infra. 33 See § 4952, supra. 34 See § 4988, infra. 35 See §§ 4990-4995, infra. 36 See § 4984, infra. 37 Evans v. Unity Investment Co. (Mo. App.), 196 S. W. 49; Baker Furniture Co. v. Hall, 76 Neb. 88, 107 N. W. 117, 111 N. W. 129, 113 N. W. 267; Gulf & B. V. R. Co. v. Winder, 26 Tex. Civ. App. 263, 63 S. W. 1043. A new company is not liable for the debts of the old where all the assets of the old company had been sold by the state for a sum barely suffi cient to pay the lien of the state, and the new corporation is not merely a continuation of the old but has a new paid up capital stock. Capital State Bank of Oklahoma City v. Western Casualty & Guaranty Ins. Co., 47 Okla. 549, 149 Pac. 149. If a corporation is dissolved and thereafter its trustees sell a portion of its assets, the corporation purchas ing such assets take them free from any liens or incumbrances on the property of the old company, at least under some statutes. Houston Ice & Brewing Co. v. Nicolini (Tex. Civ. App.), 96 S. W. 84. 38 Good v. Ferguson & Wheeler Land, Lumber & Handle Co., 107 Ark. An execution issued on a judgment against an old corporation is § 4982. Express assumption of debts-In general. Without re- 118, Ann. Cas. 1915 A 544, 153 S. W. 39 Houston Ice & Brewing Co. v. 40 United States. Dancel v. Good- Arkansas. Arlington Hotel Co. v. New York. Fernschild v. D. G. Texas. Cattlemen's Trust Co. v. -- But the mere certificate of the sec- a new promise or to bind the com- And a promise of the old company 41 See § 4753, chapter on Consolida- 43 See Davidson v. Mexican Nat. R. Agreement to issue stock to cred- A reorganization agreement by tion of liability for debts of the old company does not create a lien Under the New York statute as to reorganizations in connection § 4983. Liability for breach of agreement with creditors of old § 4984. Liability where new company merely a continuation of for coal and timber taken by the re- Agreement to provide a certain sum "Debts" include a judgment re- Co. 44 Appeal of Columbus, S. & H. R. 45 Klein v. East River Elec. Light 46 South Texas Tel. Co. v. Hunting- 47 Trustees of University v. Moody, 48 Connecticut. National Exch. Illinois. People v. Marshall, 6 Ill. 672. plained in a former section.49 Thus where a company is merely reincorporated, the new company is liable for the debts of the old.50 And it is further held that where the circumstances attending the creation of a new corporation, and its succession to the property, franchises and business of another corporation, are such as to show that the new corporation is in reality, however it may be in law, a mere continuation of the old corporation; or, in other words, that, although technically, as a matter of law, a new corporation may be created, yet, if the old corporation ceases to exist, and all its assets and franchises are acquired by the new, which is in reality a mere continuation of the old, as where there is no judicial or execution sale, the new corporation is deemed to have impliedly assumed, and is liable upon, all the obligations of the old.51 The ground of liability in Maryland. Frostburg Min. Co. v. Cumberland & P. R. Co., 81 Md. 28, 31 Atl. 698. New Jersey. Miller v. English, 21 N. J. L. 317. New York. Lea v. American, A. & P. Canal Co., 3 Abb. Pr. (N. S.) 1. South Carolina. St. Philip's Church v. Zion Presbyterian Church, 23 S. C. 297. Virginia. Wilson v. Chesapeake & Ohio R. Co., 21 Gratt. 654; Barksdale v. Finney, 14 Gratt. 338. 49 See § 4957, supra. 50 A corporation improperly organized which dissolves and is legally incorporated under a different name cannot repudiate its paper issued before the dissolution. Empire Mfg. Co. v. Stuart, 46 Mich. 482; 9 N. W. 527. Where a national bank went into liquidation as allowed by the National Banking Act, and was reorganized as a state bank, taking all the assets of the old corporation, it was held liable for its deposits. Eans' Adm'r v. Exchange Bank of Jefferson City, 79 Mo. 182. 51 United States. Armour v. E. Bement's Sons, 123 Fed. 56; McVicker v. American Opera Co., 40 Fed. 861. Arkansas. Arlington Hotel Co. v. Rector, 124 Ark. 90, 186 S. W. 622; Ferguson & Wheeler Land, Lumber & Handle Co. v. Good, 112 Ark. 260, 165 S. W. 628. California. Higgins v. California Petroleum & Asphalt Co., 122 Cal. 373, 55 Pac. 155; Strahm v. Fraser, 32. Cal. App. 447, 163 Pac. 680; Stevens v. Selma Fruit Co., 18 Cal. App. 242, 123 Pac. 212. Florida. J. I. Kelly Co. v. Pollock & Bernheimer, 57 Fla. 459, 131 Am. St. Rep. 1101, 49 So. 934. Illinois. Luce Furniture Co. v. Almini Co., 192 Ill. App. 386; Loughlin v. United States School Furniture Co., 118 Ill. App. 36. Kansas. Berry v. Kansas City, Ft. S. & M. R. Co., 52 Kan. 774, 39 Am. St. Rep. 381, 36 Pac. 724. Louisiana. W. F. Taylor Co. v. Gulf Land & Lumber Co., 119 La. 426, 44 So. 187; Lenehan v. Gulf Land & Lumber Co., 118 La. 217, 42 So. 780. Mississippi. Meridian Light & Railroad Co. v. Catar, 103 Miss. 616, 60 So. 657. Missouri. Thompson v. Abbott, 61 Mo. 176; Sweeney v. Heap O'Brien Min. Co., 194 Mo. App. 140, 186 S. W. 739; Quinn v. American Bankers' Assur. Co., 183 Mo. App. 8, 165 S. W. 823; Berthold v. Holaday-Klotz Land & Lumber Co., 91 Mo. App. 233. Nebraska. Austin v. Tecumseh Nat. Bank, 49 Neb. 412, 35 L. R. A. 444, 59 such a case, it seems, where, as a matter of law, the old and the new App. 683, 162 S. W. 1077. Am. St. Rep. 543, 68 N. W. 628; Reed Zachra v. American Mfg. Co., 179 Mo. Bros. Co. v. First Nat. Bank of Weeping Water, 46 Neb. 168, 64 N. W. 701. New Jersey. Parsons Mfg. Co. v. Hamilton Ice Mfg. Co., 78 N. J. L. 309, 73 Atl. 254. New York. Clokey v. International Rubber Clothing & General Supply Co., 28 Misc. 326, 59 N. Y. Supp. 878. Compare, however, New York v. Eppinger & Russell Co., 170 App. Div. 747, 156 N. Y. Supp. 662. Oklahoma. First State Bank of Oklahoma City v. Lee, 166 Pac. 186. Pennsylvania. Pennsylvania Knitting Mills v. Bibb Mfg. Co., 12 Pa. Super. Ct. 346. Compare Art Society of Pittsburgh v. Leader Pub. Co., 60 Pa. Super. Ct. 548. Tennessee. Long v. Fisher Typewriter Co., 1 Tenn. Ch. App. 668. Utah. Cooper v. Utah Light & Railroad Co., 35 Utah 570, 136 Am. St. Rep. 1075, 102 Pac. 202. Virginia. Barksdale v. Finney, 14 Gratt. 338. But see Chase v. Michigan Tel. Co., 121 Mich. 631, 80 N. W. 717; Goldmark v. Magnolia Metal Co., 44 N. Y. App. Div. 35, 60 N. Y. Supp. 425, aff'd 170 N. Y. 579, 63 N. E. 1117. Compare Houston Ice & Brewing Co. v. Nicolini (Tex. Civ. App.), 96 S. W. 84. Especially is this so where it is so provided in the agreement in regard to the reorganization. Stevens Selma Fruit Co., 18 Cal. App. 242, 123 Pac. 212, and see § 4982, supra. V. Rule applies to liability on judg ments against the old corporation. Alberger Condenser Co. v. United Water, Gas & Electric Co., 87 Kan. 843, 126 Pac. 1087. If a corporation is formed to take over the business and property of another company, and is in reality the same entity under another name, it is liable for the debts of its predecessor. On reorganization by sale and exchange of stock, the new company takes subject to the obligations of the old. Alden v. Wright, 175 N. Y. App. Div. 692, 162 N. Y. Supp. 668. Where a new corporation absorbs all the assets of an old corporation, and continues to do business in the name of the old corporation, it is liable for obligations so contracted, as a principal is liable for the acts of his agent. Davis Provision Co. v. Fowler Bros., 20 N. Y. App. Div. 626, 47 N. Y. Supp. 205, aff'd 163 N. Y. 580, 57 N. E. 1108. Where one corporation takes over the assets of another company for the purpose of carrying on its business, without apparent change in the personnel of the concern, it is liable for the payment of the debts of the former concern. Parsons Mfg. Co. v. Hamilton Ice Mfg. Co., 78 N. J. L. 309, 73 Atl. 254. Where a corporation is organized for the purpose of acquiring the assets of another company by paying over the consideration, not to the selling company but directly to and for the benefit of the trustees of the selling company, the transfer is fraudulent and the purchasing company is liable for the debts of the selling company. Carstens & Earles v. Hofius, 44 Wash. 456, 87 Pac. 631. Where a company is organized for the purpose of purchasing all of the property of another company, and it is paid for in shares of stock of the purchasing company issued to the stockholders of the selling company, the purchasing company is liable for all the debts of the selling company. Otis v. Ohio Mines Co., 15 Ariz. 264, 138 Pac. 777. Where a new corporation is merely |