73 Mo. App. 271 | Mo. Ct. App. | 1898
This is an action to recover the possession of a stock of goods. The suit was begun on February 13, 1896. The defendant, as sheriff of the county, held the goods under writs of attachment against one John Sawyer. The writs were issued on the twenty-second' day of January, 1896, and the levy was made on the same day. The plaintiff was in possession of the property at the time of the levy. Several defenses were interposed, only one of which we need notice. The Kahoka Savings Bank (a Missouri corporation) held the note of Sawyer.
On the twenty-fifth of January, 1896, the president of the bank assigned and delivered the note to plaintiff, who was acting as cashier of the bank. Subsequently on the same day Sawyer gave to plaintiff a chattel mortgage on the goods to secure the payment of the note. The note was overdue and the plaintiff took immediate possession of the property under the mortgage. After setting forth these facts the answer averred that the assignment of the note to plaintiff was made without the authority of the board of directors of the bank. In the replication the plaintiff admitted that his title to the goods was as alleged in the answer. In reference to the assignment the reply1 contains the following averments: “That thereafter, on the twentieth day of January, 1896, said bank, by G-eorge W. Bostic, as president of said bank, for value received, sold, assigned, transferred and delivered to the plaintiff by the indorsement of the above described note and that plaintiff became the owner and holder thereof, which said sale and assignment was so made at the time with
“Sec. 2759. The directors may appoint and remove any cashier or other employee at pleasure. The cashier or any other employee shall have no power to indorse, sell, pledge or hypothecate any notes, bonds or other obligations received by said corporation for money loaned, until such' power and authority shall have been given such cashier or employee by the board of directors. The cashier, before entering on the duties of his office, shall give a good and sufficient bond, which shall be approved by the board of directors, in such sum and with such number of sureties as the board may direct, conditioned that he will well and faithfully perform all the duties of his office, and that they (the sureties) will hold the bank harmless for any loss occasioned by any act of such officer, until all his accounts with the bank shall have been fully settled and satisfied; and all acts of indorsing, selling, pledging and hypothecating done by said cashier or
In support of the judgment it is insisted that by the terms of the foregoing statute the assignment of the note to plaintiff was an absolute nul-litv, and consequently could not there-v u b0 ratified. The primary or natural meaning of the words “null and void” is well understood. “A thing is void which is done against law at the time of doing it and when no person is bound by the act.” Anderson v. Roberts, 18 Johns. 527. But these words are not always employed in their literal sense. In Kearney v. Vaughn, 50 Mo. 284, Judge Bliss said that the word void is “more often used to point out what may be avoided by those interested in doing so, than to indicate an absolute nullity. * * * Many things are called void which are not absolutely so, and as to mankind generally, are treated as valid. They can only be called relatively void.” Endlich, in his work on the Interpretation of Statutes, section 270, in discussing the phrase “null and void, ’7 says: “What is void can always be assailed in any ■proceeding; what is voidable can be assailed only in a direct proceeding instituted for that purpose. The distinction, therefore, is of the greatest importance in its consequences as to third persons; for nothing can be founded upon what is absolutely void, whereas from those things which are voidable only fair titles may flow.”
Nevertheless it is a distinction which is often ignored in statutes, the word “void” being used where “voidable” is really intended. Hence it is said that the term “void,” as used in statutes, does not ordinarily import absolutely nullity, but does so only in a clear case. It is apparent from the authorities that whether
The object and purpose of the statute under consideration is obvious. It is a matter of general knowledge that many cashiers and other financial officers of banking institutions have heretofore indulged in the wildest speculations and the temptation to sell or hypothecate the securities belonging to their banks for their individual uses, has been so great that many of them have been unable to withstand it. In order to protect stockholders, directors and depositors against such wrongs, the legislature wisely concluded that some restrictions ought to be imposed on the general powers of such agents, hence it enacted that no assignment or hypothecation of the securities of a bank by any of its employees or officers should be valid, unless authorized by the board of directors. If the act had taken away from the cashier or other officer all authority to assign or hypothecate securities and have vested .the power solely in the board of directors, then we think that any act of such officer in contravention of the statute would have no legal effect whatever, and hence would be incapable of ratification and would be open to collateral attack on the part of anyone. But the legislature did no such thing. It left the power to assign or hypothecate securities with the financial officers of the bank and only provided a safeguard against the abuse of the power. In other words, the purpose of the statute was to restrict and not to take away an existing power. We think it clear that the assignment of the note by the president of the bank was a voidable and not avoid act. The act, when done,
With the concurrence of the other judges the judgment of the circuit court will be reversed and the cause remanded.
It is so ordered.
