81 F.2d 4 | 5th Cir. | 1936
^ ^ In proceedings under a petition filed by Barron G. Collier (herein called the debtor) praying an extension of time to pay his debts (11 U.S.C.A § 202), the appellant, as receiver of the First National Bank of Arcadia, Fla (herein referred to as the bank) filed a verified proof of claim which after alleging hat the debtor was, at and before the filing of said petition, and still is, justly indebted to appellant as such receiver m the lawful sum of $51,700.00 with lawful mterest thereon from the 31st day of May, íJó¿, alleged.
_ _ _ That the consideration of said debt is as follows:
“That on, to-wit, the 23rd day of January, A. D., 1932, the said First National Bank of Arcadia, Florida, suspended business and on said date and long prior thereto the said Barron G. Collier was the true and lawful owner of five hundred twenty-seven (527) shares of the capital stock of said .bank of the par value of One Hundred Dollars ($100.00) each and was from, to-wit, the 6th day of April, A. D., 1925, until the suspension of said bank on, to-wit, the 23rd day of January, A. D., 1932, a director of the said First National Bank of Arcadia, Florida; that at some date unknown to this deponent the said Barron G. Collier caused to be organized a corporation known as Collier Investing Company and on, to-wit, the 6th and 7th days of August, A. D., 1928, caused five hundred seventeen (517) shares of the capbal stock 0f sajd 'bank so standing in his name to be assigned to the said Collier investing Company by the assignment of sundry certificates of stock aggregating the number of shares last mentioned; that deponent is informed and believes and upon information and belief alleges, that the said assignment of the said stock by the said Barron G. Collier to the said Collier Investing Company was made without any valid consideration and for the purpose of concealing the identity of the true owner of the stock; that the transfer was made with knowledge on the part of the said Barron G. Collier of the fact that the condition of the said First National Bank of Arcadia, Florida, was such that its solvency was imperiled, and thaVhc assignment and transfer of sald stock xwa® mad<l íhe 'nteilt,1 on the part of the said Barron G. Collier to evade the statutory liability for assessment, which would accrue in the event 0f -¡be insolvency of the said bank, * *' *»
That f of daim further alI d tQ the followi effect. That the Co* troller of the Cur had levied an as_ sessment tbe stockholders of said bank of m cent of the value of each sbare thereof ^ due nQtice of that asscssment and of dcmand for t thereof was iven to the debt. Q that on a stated date the Comptrol,er of the Cur had b order i/writ_ ^ auihorized and directed the appellant, as such receiver, to enforce the liability 0f sajd stockholders to the amount of said assessment, and that the debtor has paid no part of said assessment against him except the sum of $1,000, and that there are no set-offs or counterclaims to said assessment against the debtor, and that no manner of security for said debt has been received. By answer to the proof of claim, the debtor admitted that said bank suspended business on January 23, 1932, and that the debtor transferred 517 shares of the capital stock of that bank, and denied all other allegations of said proof of claim. Evidence showed the following: In 1925 the debtor ac
“Barron Collier, one of Florida’s outstanding property-owners and developers, is a large stockholder of both these institutions and the plan just now effected is said to have his hearty approval and to be in keeping with his policy of concentrated effort with the minimum of operating overhead.
“Edwin W. Poe, financial director of the Collier organization, was here this
Prior to the closing of the bank in January, 1932, the president of the hank by telephone asked the debtor’s opinion as to whether the bank should be closed immediately, and the debtor said “Yes;” and, in connection with that telephone conversation, the debtor wrote a letter to the president of the hank confirming the action of the bank’s hoard of directors in closing the bank. The appellant introduced evidence which was relied on to support the allegations of the proof of claim as to the debtor’s transfer of most of his stock in the bank having been made with knowledge on the part of the debtor that the solvency of the hank was imperiled and with intent on the part of the debtor to evade the statutory liability lor assessment against holders of the bank’s stock. In view of the conclusion stated below, it is not deemed material to set out the evidence just referred to. Upon hearing on the debtor’s objection to the above-mentioned proof of claim, the court made an order disallowing that claim.
It fairly is to he inferred from the evidence that, though there was a nominal transfer by the debtor in 1928 of 517 of the 527 shares of the hank’s stock owned by him, he continued to be the beneficial owner of all those shares. They remained hypothecated to creditors of the debtor up to the time the debtor filed his schedules in the extension of debts proceeding. It appeared that the debtor or his representative controlled all those shares for voting purposes at meetings of the bank’s stockholders subsequent lo the date of the nominal transfer, including the meeting in January, 1930, when the above-mentioned consolidation of the bank with another institution was approved. In a published statement with reference to that consolidation, prepared by the debtor’s representative, Mr. Poe, the debtor was referred to as a large stockholder of the bank. Evidently the, debtor’s representative then understood that the debtor really owned greatly more than 10 shares of the bank’s stock. The evidence as to the transfer of 517 of the 527 shares of the hank’s stock held by the debtor is not such as to warrant a finding that the debtor really sold the shares formally transferred. The debtor’s own testimony showed that the stock was “transferred on the advice of our legal department to holding Company,” hut that he did not know what he got for it. In view of the debtor’s retention of the benefits of actual ownership of the 517 shares nominally transferred, it is not reasonably credible that the entries found on books of Collier Bros, represented an actual sale, for about $180 a share, of 517 shares of the bank’s stock which remained hypothecated for debts of the debtor, certificates for those shares never being received by Collier Bros.; especially as evidence with reference to that transaction shows that on the day they acquired those shares Collier Bros, sold them for stock in another Collier corporation which stock Collier Bros, disposed of for a total consideration of $2,500. We are of opinion that the evidence as a whole requires the conclusion that the debtor’s transfer of 517 shares of his stock was merely colorable.
12,3] It is well settled that the actual owner of national bank stock may he held for an assessment although his name does not appear upon the transfer hooks of the bank. Early v. Richardson, 280 U.S. 496, 50 S.Ct. 176, 74 L.Ed. 575, 69 A.L.R. 658; Forrest v. Jack, 294 U.S. 158, 55 S.Ct. 370, 79 L.Ed. 829, 96 A.L.R. 1457; Pauly v. State Loan & Trust Co., 165 U.S. 606, 17 S.Ct. 465, 41 L.Ed. 844. A colorable transfer of shares of stock in a national bank, made for the benefit of the transferor, cannot relieve the latter from his liability as a shareholder for the debts of the bank. McDonald v. Dewey, 202 U.S. 510, 26 S.Ct. 731, 50 L.Ed. 1128, 6 Ann.Cas. 419; Corker v. Soper (C.C.A.) 53 F.(2d) 190.
The evidence showing that the debt- or continued to be the beneficial owner of the nominally transferred shares was not materially variant from the allegations of the proof of claim. The filing of the proof of claim was not the institution of a suit at law. Wiswall v. Campbell, 93 U.S. 347, 350, 23 L.Ed. 923. Bankruptcy proceedings are more summary than ordinary suits, and a sworn proof of claim against a bankrupt is prima facie evidence of the allegations in case it is objected to. Whitney v. Dresser, 200 U.S. 532, 26 S.Ct. 316, 50 L.Ed. 584; In re Small (D.C.) 1 F.(2d) 452. It cannot reasonably be affirmed that the evidence as to the debtor’s transfer of most of the bank’s stock standing in his name was such as to overcome the prima facie case madp
The order appealed from is reversed.