278 N.W. 551 | Neb. | 1938
The department of banking of the state of Nebraska, appellant, as receiver and liquidating agent of the First State Bank of Burwell, Nebraska, filed a petition in the district court for Garfield county, for and in behalf of creditors, against all of the directors of the First State Bank of Burwell, Nebraska, seeking a judgment for $8,-215.88 as damages because of alleged making of excessive loans by them in violation of section 8-150, Comp. St. 1929. It is admitted that, at the time of the filing of the petition on March 27, 1936, two years, two months and fifteen days after plaintiff took over the bank for liquidation, two of the- directors were unable to be served with summons because no one knew their whereabouts; two directors were deceased and the representatives of their estates were made parties but not served with summons; and the two other directors, William L. McMullen, Sr., and Harry J. Coffin, were served with process, but before this appeal was taken the defendant William L. McMullen, Sr., died and the proceeding was revived against the representative of his estate, Cora McMullen, executrix. Therefore, the defendants, appellees herein, are Cora McMullen, executrix, and Harry J. Coffin. Defendants McMullen and Coffin demurred to plaintiff’s petition for the reasons, generally, that the petition did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendants, or either of them, and especially because the petition shows on its face that any and all claims asserted by plaintiff were barred by the statute of limitations. Their demurrer was sustained and, plaintiff having elected to stand upon its petition, the action was dismissed at plaintiff’s costs. Motion for new trial was overruled and appeal taken to this court.
We have- given careful study to the allegations of the petition but have been unable to determine from pleaded facts that there ever was an excessive loan. The allegation that each of the loans going to make up the aggregate sum was an excessive loan cannot be true because the greatest
We.find no allegation that any excessive loan caused the insolvency-of the bank- or that any creditor for whom this -action was brought was .a creditor at the time of making any excessive loan or that they were damaged as a consequence thereof. We do not-find any allegation in the petition,- outside of the general - statement that the bank has been damaged, which shows that the Grunkemeyer loans are not now perfectly good and may still be collected; • To hold the directors of a bank liable under this statute, facts pleaded by plaintiff must show that an excessive loan was, in fact, made; that the directors participated' in or knowingly assented thereto, and that the person or persons for .whom the action is brought were
We find plaintiff’s petition shows upon its face that any and all claims asserted-by plaintiff in this action were, at the time of the .filing of the petition, March 27, 1936, barred by the statute of limitations. In the case of Wood v. Carpenter, 101 U. S. 135, Justice Swayne said: “Statutes of limitation are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extending to the limit prescribed, is itself a conclusive bar. The bane and antidote go together.” We approved this statement in Branham v. Ayers, 126 Neb. 688, 254 N. W. 259.
Counsel for the parties have, at great length and very ably, discussed the question of whether section 8-150, Comp. St. 1929, is remedial or penal in character, having in mind sections 20-206 and 20-208, Comp. St. 1929, which, in effect, provide that, if remedial, the action must be brought within four years, and, if penal, within one year. Section 8-150, Comp. St. 1929, provides, in so far as it relates to this case: “No corporation transacting a banking business in this state shall directly or indirectly loan to any single * * * individual * * * for the use and benefit of such * * * individual, more than twenty per cent, of the paid-up capital and surplus of such bank. * * * Any officer or employee of any corporation transacting a banking business under the laws of this state who shall violate or knowingly permit a violation of the provisions. of this section, upon conviction thereof shall be .punished by a fine not exceeding five hundred dollars. * * . If the directors of any. state bank shall. knowingly violate,, or knowingly permit any of,the. .officers, agents.or servants
The petition discloses upon'its face that more than four years elapsed from the time the last loan of any kind was ever made to Grunkemeyer by the bank, and that more than two years elapsed from the time the bank was taken over by the department before this action was brought. It is conceded by the parties that, if the statute is penal in character, it is barred by the statute' of limitations. Plaintiff concedes that more than four years have elapsed since any excessive loan was made, but contends, however, that the statute is remedial and the statute of limitations cannot apply for the reasons, first, that the cause of action did not accrue until damages were suffered as far as the creditors are concerned on whose behalf this action was brought; second, that the directors were in full possession and control of the bank at all times and are estopped in equity to claim the benefit of the statute of limitations; and, third, that the directors were trustees of an express trust and cannot claim the benefit of the statute of limitations.
We conclude that the statute is penal in part and remedial in part. In so far as the forfeiture of the bank’s charter and the imposition of a fine for a violation of the statute are concerned, it is penal. See Bank of College View v. Nelson, 106 Neb. 129, 183 N. W. 100. As to that part of the statute in controversy, it is remedial. We said in Globe Publishing Co. v. State Bank of Nebraska, 41 Neb. 175, 59 N. W. 683: “A penal statute is an act by which a forfeiture is imposed for transgressing the provisions of the act. It may also be remedial in one part and penal in another.” There is an abundance of other authority for
The cause- of action, however, accrued when the loan was made. In Corsicana Nat. Bank v. Johnson, 251 U. S. 68, 87, 40 Sup. Ct. Rep. 82, the supreme court of the United States said: “The cause of action against a director knowingly participating in or assenting to such excessive loan would be complete at that moment,- and entire.” Plaintiff concedes in its brief that the cause of action accrued in favor of the bank when the loans were made. We can give no merit to the contention that creditors for whom this action was • brought stand in any different position than the bank so far as determining when the cause of action accrues. There is no allegation in -the petition that any excessive loans'made'the bank insolvent or that any creditor was such at the time of making any excessive loan, or that they were damaged thereby. We said in Bourne v. Baer, supra: “The petition in the case at bar does not allege any facts tending to show that any creditors of the corporation were induced to extend credit to it or damaged by the failure of the corporation to publish notice of its indebtedness. The liability upon which appellant herein bases his cause of action comes, therefore, within definition of a . penalty set forth in Kleckner v. Turk, supra.” See, also, Graham v. Railroad Co., 102 U. S. 148; Crowley v. Brower, 201 Ia. 257, 207 N. W. 230; Sheppard v. Thomas, 24 Kan. 780.
If the statute provided a director’s liability for the amount of the excessive loan, or the balance due thereon, instead-of all damages actually suffered, plaintiff’s con
“The running of the statute is not delayed. until plaintiff can get ■ .sufficient evidence to maintain his . action.”
Plaintiff concedes that the cause of action accrued in favor of the bank when the loans were made, but contends that the bank in this case, being in complete control of the directors, was powerless to act. Thus, plaintiff attempts to impose equitable estoppel in bar of the plea of the statute of limitations. No facts are pleaded in plaintiff’s petition showing an equitable estoppel except that the directors acted continuously throughout the period of the loaning. No inducement, fraud or concealment is charged to the directors, and no want of knowledge or notice thereof is alleged on the part of this plaintiff or any creditor. We said in Furstenberg v. Omaha & C. B. Street R. Co., 132 Neb. 562, 272 N. W. 756: “Estoppel must be reciprocal and mutual. * * * See 21 C. J. 1107 and 1139. Estoppel does not itself give a cause of action, its purpose being to preserve rights already acquired and not to create new ones. State v. Missouri Utilities Co., 331 Mo. 337, 53 S. W. (2d) 394.” (Italics ours.)
The case of Mobley v. Faircloth, 174 Ga. 808, 164 S. E. 195, 83 A. L. R. 1201, is patently in point. In that case the court said: “Where directors of a bank of this state make excessive loans in violation of the provisions of section 13 of article 19 of the banking act, * * * as a result of which the bank sustained loss and was rendered insolvent, and where the superintendent of banks of this state, after having taken possession of the particular bank as an insolvent institution, brought a suit .against such directors to recover damages solely for their breach of duty in making such excessive loans, the suit was subject to demurrer upon the ground that it appeared that the cause of action was barred by the statute of limitations, where the allegations of the petition affirmatively disclosed that the loans were made more than four years before the suit was filed, but that the failure of the bank and its sur
The Nebraska cases cited by plaintiff in support of its contention that directors of a bank are trustees of an express trust are not in point here. We said in Mayberry v. Willoughby, 5 Neb. 368: “If the creditor, by his own fault and laches, permits the statute so to attach,' whatever may be the- nature or character of his claim, he cannot complain of the operation of the law, since it is by his own negligence that it -can be brought to bear against him.” Courts generally concede a fiduciary relationship; that is, that directors of a corporation hold the property thereof for the benefit of creditors,' but only under a trust which is implied or constructive in nature and not such as to bar the statute of limitations. See Baxter v. Moses, 77 Me. 465, 1 Atl. 350, 52 Am. Rep. 783; Boyd v. Mutual Fire Ass'n, 116 Wis. 155, 94 N. W. 171; Wallace v. Lincoln Savings Bank, 89 Tenn. 630, 24 Am. St. Rep. 625; Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371. The case of Hayden v. Thompson, 71 Fed. 60, was a case arising under the statutes of the state of Nebraska. The court had under consideration in that case the question of whether or not there was -an express trust between a bank and a depositor or creditor of the bank under the statutes of Nebraska, and whether or not the statute of limitations runs as against recovery of payment of an unauthorized • dividend by the bank. Therein Judge Sanborn said: “Express trusts are not within the statute of limitations because the possession of the trustee is presumed to be the possession of the cestui que trust. * * * But lapse, of time is as complete a bar to a constructive or implied trust in equity as at law, unless there- has been a fraudulent concealment
The general rule seems to' be that the statute of limitations is ordinarily available as a defense unless the action is one which will stand the triple test, to wit: First, it must be a direct or express trust; second, it must-be of a kind belonging exclusively to the jurisdiction of a court of equity; and, third, the question must arise between the trustee and the cestui que trust. This is not an action cognizable exclusively in equity by a cestui que trust against a resisting trustee. In Bodie v. Robertson, 113 Neb. 408, 203 N. W. 590, this court said: “So far as the appellants are concerned, this is not an action to enforce a trust against a resisting trustee. If it were, many of the authorities they cite would, be in point.” -This is not an action to preserve assets or martial the same for creditors or.to restore or account for trust assets as such.. This is an action for creditors upon a liability created by statute xemedial in character to recover damages which must be actually suffered by some person or persons as a consequence' of a violation of the statute. It is a law action now barred by section 20-206, Comp. St. 1929, which provides that an action upon a liability created by statute must be brought within four years.
The judgment of the trial court sustaining defendants’ demurrer and dismissing plaintiff’s petition at plaintiff’s ■costs was right, and it is hereby
Affirmed.