178 Ga. 142 | Ga. | 1933
B. E. Gormley as State superintendent of banks filed a suit for injunction against C. H. Collier, sheriff, and H. L. Culpepper, tax-collector, of Meriwether County, to enjoin the enforcement of an execution issued by the tax-collector against Mrs. George Crosley, and levied upon land the title to which had been conveyed by Mrs. Crosley to LaGrange Banking & Trust Company, whose assets were at the time of the levy in the hands of the superintendent of banks for the purposes of liquidation. At an interlocutory hearing the judge of the superior court overruled a general demurrer and granted an interlocutory injunction, and the defendants excepted. The facts alleged in the petition were substantially as follows: Mrs. Crosley executed a deed conveying the land to LaGrange Banking & Trust Company on December 29, 1927, to secure an indebtedness of $1700. The amount of this debt is now in excess of the value of the land. The bank failed and went into liquidation on April 29, 1931. On or about January 1, 1933, the sheriff of Meriwether County levied upon the land under a tax execution issued against Mrs. Crosley for state, county, and school taxes for the year 1931. The land so levied on is now the property of the superintendent of banks as statutory receiver for the use of LaGrange Banking & Trust Company, and the levy is illegal for the reason that the property is “in custodia legis.” Since the act of August 25, 1927, amending the banking act of 1919, the claims of depositors have priority and preference over state and county taxes. Unless the court should issue an order restraining the sheriff and tax collector from selling the property, the same “will be taken from the possession, custody, and control of petitioner.” The plaintiff has no adequate remedy at law. The prayers were for injunction, for a “decree that the debts due to depositors have a priority over taxes as to the property levied on,” and for general relief.
“Sec. 19. Order of paying debts. After the payment of the expenses of liquidation, including compensation of agents and attorneys, and after the payment of unremitted collections, the order of paying ofE debts due by insolvent banks shall be as follows: (1) Debts due depositors. (2) Debts due for taxes, State and Federal. (3) Judgments. (4) Contractual obligations. (5) Unliquidated claims for damages and the like. Provided, that nothing herein contained shall affect the validity of any security or lien held by any person or corporation.”
With reference to “the order of paying off debts due by insolvent banks,” it was held in the recent case of Bank of Hampton v. Smith, 177 Ga. 532 (170 S. E. 508), that the act of 1927 “contemplates preferences as between only general debts owed by such banks.” We conclude that the contention of the defendant in error as to priority is without merit.
The decision in Gormley v. Askew, 176 Ga. 210 (167 S. E. 600), having been concurred in by only four Justices, is not binding upon the Supreme Court as a precedent; and to the extent that it may conflict with the present ruling, it will not be followed, the author of the opinion in that case being after further reflection convinced, with the other Justices, that the decision therein rendered, so far as it related to priority, was incorrect.
Nor does the petition allege sufficient facts to show an interference with the superintendent’s possession of assets within the meaning of sections 3 and 5 of article 7 of the banking act of 1919. Construing the petition most strongly against the plaintiff, as must be done on general demurrer, we think it alleges only that the legal title to the property was conveyed to the bank as security, and that the possession and control of the physical property still remain in Mrs. Crosley, the bank’s debtor. The lien for the taxes as charged against the debtor being a valid and superior claim against the property, the superintendent could not enjoin the levy and sale unless he was in the possession and control of such property. This was not a claim against the hank, and there is no provision either in the banking act or In any amendment thereto under which such a claim could be filed with the superintendent so long as the property has not been reduced to actual possession by him. The superintendent is a mere statutory receiver, and his powers and duties are defined by law. Accordingly, the prosecution of a claim in favor of another person against property of an insolvent bank’s debtor can not be enjoined at his instance, unless authority for so doing can be found in the banking laws. It is provided in section 3 that “the taking possession of any bank by the superintendent of banks shall be sufficient to place all asset? and ^property of such
These are the only provisions of law under which injunctions have been granted or could be granted on the petition of the superintendent of banks in cases of this kind, and these provisions do not authorize the grant of an injunction to prevent the enforcement of a valid and superior lien against property of some other person, the title to which has been conveyed to the bank as security for an indebtedness, but the possession of which has not been taken by the bank or the superintendent. Even if on identical facts an injunction might be granted on the petition of a court receiver (cf. Civil Code of 1910, § 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; Blumenfeld v. Citizens Bank & Trust Co., 168 Ga. 327, 147 S. E. 581; Castleberry v. Long, 176 Ga. 293, 167 S. E. 883; Hitz v. Jenks, 185 U. S. 155 (4) (22 Sup. Ct. 598, 46 L. ed. 851; Grosscup v. German Savings & Loan Society, 162 Fed. 947 (2); Slade v. Massachusetts Coal Co., 188 Fed. 369; Field v. Kansas City Refining Co., 296 Fed. 800; Cherry v. Insull Investments Inc., 58 Fed. (2d ) 1022), the same rule would not necessarily apply in favor of the superintendent of banks, who has no authority excépt that which is expressly or impliedly provided by the banking laws. ' ,
By the act of August 31, 1933 (Ga. L. 1933, pp. 63, 66) it was provided that the superintendent "“may, when in his opinion it is necessary, in order to fully protect and benefit the said bank and its creditors to the extent of any and all equities which said bank may have in any property, real or personal, by reason of any mortgage, assignment, security deed, or other proper legal claim attaching thereto, buy in said property or pay off such secured claim, and it is hereby authorized and empowered to use any of the funds of said bank for that purpose to the extent the same may be necessary or required.” It was the evident purpose of this statute to provide the remedy for the.superintendent in a situation like the present. The tax lien here in question was a “proper legal claim attaching” to the property; and, as we have seen above, the lien was valid and was superior to the security deed. Since the superintendent had not reduced the property to his possession, he should allow the sale under the tax fi. fa. to proceed according to the right of the plaintiff therein and “buy in said property,” unless he should see fit to “pay off said secured claim.”
From what has been said, the court erred in not sustaining the general demurrer and dismissing the petition.
The rulings stated above will cover and control the case of City of Atlanta v. Gormley, and therefore the two cases are decided together. In the latter case, the petition alleged possession by the superintendent of banks; and therefore the court did not err in overruling the general demurrer, although the tax fi. fas. represented valid and superior liens against the property. The evidence, however, disclosed the fact that the superintendent had taken possession of only a part of the property in question; and under the principles stated above, the court properly granted an injunction as to the property which had come into the possession of the superintendent of banks, but erred in granting an injunction with respect to the other property.