28 Colo. 421 | Colo. | 1901
Lead Opinion
delivered the opinion of the court.
On June 7, 1894-, The German National Bank .ceased to do business and closed its doors. At the time 1,057 shares of stock stood in the name of John J. Reithmann. On July 6, 1894, a receiver was appointed. On October 25, 1894, John J. Reithmann,
All questions presented to the district court, except one, have been abandoned by the respective parties; and the sole question for our consideration is whether or not the statutory liability of Reithmann as a shareholder of the German National Bank is provable against his assigned estate. The assignee of Reithmann, the plaintiff in error, contends that at the time of the assignment of Reithmann, the receiver of the bank, the defendant in error, was not a creditor of Reithmann because at that time no assess
There are several questions, collateral to the main one involved in this case, which will not be considered further than to state that we agree with the court of appeals in its conclusion that the actions of the assignee in this case in respect to the stock did not make him a stockholder and, as such, subject to the statutory liability; and that an assignee for the benefit of creditors is not obligated to accept, but is bound to decline to accept, assets which will prove onerous and a burden to the estate. Hill v. Graham, 11 Colo. App., 536. These conclusions were reached after careful consideration by that court, and are sustained by the authorities cited. In the view we take of this case, however, a determination of these questions is not necessary to a decision. Section 5151 of the Eevised Statutes of the United States provides, that “The shareholders of every national banking association shall be held individually responsible, equally and ratabljq and not one for anpther, for all contracts, debts, and engagements of such asssociation, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares.” It is under this section of the statute that the receiver claims the right to file, and have allowed, his claim against John J. Reithmann and J. J. Reithmann & Company in the sum of $105,700, being the par value of the stock held by John J. Eeithmann in the German national Bank. The bank became insolvent and closed its doors a few months before the assignment of Reithmann and Reithmann & Company. It is declared in Hobart v. Johnson, 8 Federal Reporter, 493, by Blatchford, circuit judge, speaking of the stockholder’s liability, that “Every creditor of the bank, becoming such, becomes, eo instante, a creditor of the shareholder in respect to the liability in question.
And Mr. Justice Harlan, in Stuart v. Hayden, 169 H. S., 1, speaking of the subject generally, says:
“The safety of a national banking association, so far as its creditors are concerned, depends largely upon the security given by the statutory provision entitling creditors to look' to the individual liability of shareholders, including the liability of the estates and funds in the hands of executors, guardians and trustees holding shares of. national bank stock. One who holds such shares — the bank at the time being insolvent — cannot escape the individual liability imposed by the statute by transferring his stock with intent simply to avoid that laibility, knowing or having reason to believe, at the time of the transfer on the books of the bank, that it is insolvent or about to fail. A transfer with such intent and under such circumstances, is a fraud upon the creditors of the bank, and may be treated by the receiver as inoperative between the transferrer and himself, and the former held liable as a shareholder without reference to the financial condition of the transferree. The right of creditors of a national bank to look to the individual liability of shareholders, to the
Prom these cases it seems quite clear that the liability of Reithmann was that of a principal debtor, not of a surety; that he became so liable when he became a stockholder; and that any
Affirmed.
Rehearing
On Petition for Rehearing.
delivered the opinion of the court.
In the petition for rehearing two points are made: (1) That the assignee never treated the bank stock as an asset, or assumed control of it in such way as would make the assets in his hands subject to the payment of the pro rata share of the indebtedness arising by the assessment of the comptroller; and (2) That at' the time of the assignment there was no claim growing out of the ownership of the stock by Eeithmann which could be urged against the estate.
Petition for Rehearing denied.