175 Ga. 340 | Ga. | 1932
(After stating the foregoing facts.) There is only one question raised by the assignments of error in the bill of exceptions, to wit: whether the court erred in overruling the demurrers of the City Bank & Trust Company, and W. J. Davis, superintendent of banks, to the petition of Graf, trustee. Plaintiffs in error earnestly insist that their demurrers should have been sustained. This contention is based upon the several grounds which are embodied in the demurrers, which are more compactly summarized in the brief of counsel for plaintiffs in error.
So many corporations are referred to in the instant case that we shall not attempt to name them. But, as said by Mr. Justice Hines of Chatham Bank & Trust Co. v. Ocilla Southern R. Co., 153 Ga. 37, 41 (111 S. E. 570) : “The general rule is, that, where property of a corporation has been placed in the hands of a receiver, persons seeking to assert equitable remedies against its assets should become parties to the cause by intervention and prosecute their remedies therein. Civil Code, § 5478; National Bank of Augusta v. Richmond Factory, 91 Ga. 284 (18 S. E. 160); Empire Lumber Co. v. Kiser, 91 Ga. 643 (17 S. E. 972). To this general rule, as to all general rules, there áre exceptions. It is probably impossible to find any general statement of the law so inclusive
In the third ground of the demurrer it is said: “The petition is predicated upon an allegation that this defendant has been removed as trustee. In the ninth paragraph of the petition the plaintiff sets out a paragraph of the deed which shows that the requirement is that the trustee be removed by can instrument in writing under the hands and seals of the holders of three fourths of the amount of the then outstanding bonds/ The exhibit attached to the petition shows that this provision was not complied with. It is not alleged that the bondholders can act under the hands and seals of their attorneys, nor is it alleged that any instrument was signed removing the trustee under the provision quoted in this paragraph of the petition, nor does it appear that any instrument has been executed under the hands and seals of a majority of the outstanding bondholders, appointing the plaintiff as trustee, either by the bondholders or by their attorneys. It is not alleged that said deed contains any provision for a meeting of the bondholders nor
In the fourth ground of the demurrer the defendant insists: (a) That as a matter of law the superintendent of banks did succeed to all the rights of the bank and the duties which the bank was discharging at the time, and that as a matter of law the superintendent of banks had a right to act as a trustee, (b) That, because the meeting was held more than six months after the petition attacked was filed, plaintiff and the bondholders are estopped to dispute the right of the defendant in said proceeding. As we have already said, the so-called prior proceeding for receiver, never having been served, can not be the basis of an estoppel, as urged by the demurrer. The powers conferred upon the superintendent of banks by the original banking act of 1919 (G-a. L. 1919, pp. 135-221), as amended by the act of 1922 (Ga. L. 1922, pp. 63-70), are sweeping and comprehensive in so far as the property and assets of the insolvent bank itself is concerned. In sec. 1, art. 7 of the original banking act (supra, pp. 154-155) it is said that “the superintendent himself, or by a duly authorized agent, shall forthwith take possession of all the assets of such bank and retain possession thereof until such bank shall be authorized by him to resume business, or its affairs be liquidated as herein provided.” But it is clear that this has reference only to its business as a bank, as that word is used in immediate connection with the word “assets.” An individual or a corporation, when acting merely in a fiduciary capacity as trustee to hold the title of property in trust for the benefit of creditors who are bondholders, is not in the business of banking, though a bank, being an artificial person, may be authorized to act as trustee, just as a natural person may perform such duty. Fn
The fifth ground of the demurrer, which sets up that the plaintiff or the bondholders are required to intervene, and have no right to institute an independent proceeding, has already been passed upon in the first division of this opinion.
The sixth ground of the demurrer sets up that “the petition shows on its face that there is a nonjoinder of parties. Neither the City Savings Properties Inc., the holder of the legal title to said property as alleged in said petition, nor the receiver, which it appears from this petition has been appointed by the court, are made parties thereto. Certainly it Would appear that a receiver who [is] sought to be removed should be a necessary party to such a proceeding as this.” Under the doctrine so clearly stated in Chatham Bank & Trust Co. v. Ocilla Southern R. Co., supra, neither of the parties mentioned in the demurrer is a necessary party to this proceeding, because the court has power to altogether ignore the prior proceeding.
No ruling will be made on the seventh ground of the demurrer, since it is not referred to in the brief of counsel and must be treated as having been abandoned.
The court did not err in overruling the demurrer to the petition. Judgment affirmed.