46 Ga. App. 431 | Ga. Ct. App. | 1933
Lead Opinion
The court sustained a general demurrer to the petition of E. E. Gormley, as superintendent of banks of this State, against the executrix of Billups Phinizy, who succeeded Jacob Phinizy as trustee of Marion Daniel Phinizy, a person of unsound mind. The superintendent of banks excepted to the judgment sustaining the demurrer, and brought the case to this court. The transactions out of which this case arose have been the subject-matter of other litigation. See Phinizy v. Mobley, 42 Ga. App. 33 (155 S. E. 73), and Mobley v. Phinizy, 172 Ga. 339 (157 S. E. 182).
Where on June 17, 1924, the assets of the estate of a person non compos mentis were turned over to one as trustee by the personal representatives of the deceased trustee of such non compos mentis person, said assets including certain stock in the Washington Exchange Bank, which was chartered under the act of 1888 (Ga. L. 1888, p. 73), and where the successor trustee executed to the personal representatives of his predecessor trustee a receipt in which he stated that he did not ratify any unauthorized investments made by such predecessor for the cestui que trust, and where on December 18, 1924, the successor trustee filed his petition in Clarke superior court, in which he set up that he had received from his predecessor such bank stock, and asked authority to sell it at private sale from
The trustee of tlie person non compos mentis, who succeeded to the trust upon the death of Jacob Phinizy, was not personally liable for the stock assessment because the stock stood on the books of the bank in the name of “Billups Phinizy, Trustee Marion Daniel Phinizy,” he having had the stock transferred on the books of the bank in this manner upon his succession to the trust, in that the Avords “Trustee Marion Daniel Phinizy” were merely descriptio person®. Had the stock been transferred and entered on the books of the bank in the name of “Billups Phinizy, trustee,” with nothing more, the legal title to the stock would be prima facie at least in Billups Phinizy. Williams v. Farmers State Bank, 22 Ga. App. 656 (97 S. E. 249); Civil Code (1910), § 3570. The omission of the word “as” from the entry of this stock on the books of the bank is immaterial. See Harp v. First National Bank, 173 Ga. 768 (161 S. E. 355). Any one examining the books of the bank and seeing the entry of the stock in this manner Avould clearly understand that the stock was in the name of the trustee as trustee for the named cestui que trust, and this meets the intent and purpose of the requirement that where stock is transferred the entry thereof
Judgment affirmed,
Concurrence Opinion
concurring specially. I fully concur in the foregoing opinion. Inasmuch as counsel for the plaintiff rely partly on the decision in Mobley v. Phinizy, 42 Ga. App. 33 (supra), prepared by the writer, and as counsel for the defendant apparently are themselves of the opinion that certain statements in the case just mentioned may not coincide with their own contentions in the instant case, I deem it proper to make some statements relative to the former decision. While I am of the opinion that the holding in the case reported in 42 Ga. App. is correct, — more certainly, perhaps, as to nonliability of the trust estate for the 139 shares which were purchased by Jacob Phinizy, the first trustee, subsequently to the death of Ferdinand Phinizy, the creator of the trust, as distinguished from the seven shares which went to the trust estate directly from the creator of the trust, — I am nevertheless of the opinion that the language of the former decision referred to contains one obiter statement which may be misleading, or, at least, confusing. No better service can be rendered by a court than to eliminate conflicts or ambiguities in its decisions. I desire to point out just wherein, in my judgment, the earlier case may be subject to such criticism.
The defendant in the earlier case was not the defendant in this case. The earlier case was a suit by the superintendent of banks against the same second trustee, but in his representative capacity, who did not purchase, but took over the stock from the first trustee. The suit was against him in his representative capacity only, thereby seeking to reach the assets of the trust estate, for the benefit of the creditors of the insolvent bank. That proceeding having failed, the present action is against the same second trustee, but as an individual, brought in behalf of the same creditors. The decision in the earlier case (42 Ga. App.) held, and I think correctly, that neither the alleged unlawful investment nor unlawful conduct on the part
Aside from any reference to the previous decision, the present case has not, however, been altogether without difficulty to the writer; but he has reached the conclusion that the language of the bank’s charter, imposing stockholders’ liability in favor of creditors of the bank, can not be taken or construed to hold the defendant liable as a “stockholder” or “owner of stock.” It is a familiar rule that such' liability, being in derogation of the common law, must be construed strictly against one seeking to enforce it. There is no inherent liability in favor of creditors against one owning stock in a banking corporation. In order to render them liable they must be brought strictly within the terms of some statute which in terms imposes it. The language of the bank charter is as follows: “That all of the assets of the bank shall be liable for its debts and each stockholder shall be individually liable for the debts of the corporation to the extent of his or her unpaid stock subscription, and in addition thereto each stockholder shall be individually liable for the debts of the bank equally and ratably, and not one for the other, in an amount equal to the par value of the stock owned by him or her at the time the debt was created.” (Ga. L. 1888, p. 75, sec. 8.) The defendant in this case, as an individual, was neither a “stockholder” nor, as an individual, an “owner of stock.” Such being the case, the
The difficulty the writer has encountered in the instant case, and, as already stated, irrespective of anything that might have been said in 42 Ga. App., arises out of the fact that since the trust estate is not liable, and since the trustee is not liable, no protection of any sort is afforded the creditors. Under a broad interpretation of the charter it might perhaps be taken as its purpose and intent that every share of stock should guarantee liability of some person. Construing the charter liberally, it would seem to be intended that there should be a liability no matter who in fact owned the stock. If the liability could not be' lawfully imposed upon one incapable himself of assuming it, it might seem, under such broad construction, that the wrong