172 Ga. 116 | Ga. | 1931
Reecl, Weaver, Shackelford, and Patton filed their petition against Mobley as superintendent oE banks, and Watkins as sheriff of Oglethorpe County, in which' they made these allegations: They are stockholders in the Bank of Lexington. In February, 1926, the capital stock of this bank became greatly impaired; and the superintendent of banks required it to make good its impaired capital stock, in pursuance of the power conferred upon him by the act of August 26, 1925. Acts 1925, pp. 119, 126; 12 Park's Code-Supp. 1926, § 2267(d). At a meeting of the stockholders of the bank in March, 1926, an assessment of $100 per share was levied against each stockholder. Petitioners promptly paid to this bank the amounts required of them under this assessment, by paying to it $100 per share for each share of stock owned by them. On July 14, 1926, the bank closed its doors, the superintendent of banks took possession, and since that date all of the assets of the bank have been in his. hands for liquidation. On or about October 29, 1926, Bennett, then the superintendent of banks, in order to pay depositors in this bank, levied an assessment on each of the stockholders in the sum of $100 per share; and on that date executions were issued against each of petitioners in the amounts assessed against them. These executions have been levied by the sheriff of said county upon property of each of petitioners, except Shackelford, and this property has been advertised to be sold.
The Bankers Trust Company, which owned a large number of shares dictated the policy of this -bank; and before the closing of the bank all negotiations between it and the department of banking were made by that company, which is now absolutely insolvent. That company, after the levy of said assessment to restore the impaired capital of this bank, agreed with the officers, directors, and stockholders of this bank to take over all of the stock owned by any stockholder who was unwilling to pay the assessment so levied. This assessment was made for the purpose of reorganizing said bank, so that it might pontinue to do a banking business; and the money received from said assessment was to be used for that purpose, and for no other purpose. Petitioners and other stockholders in good faith, and in compliance with the agreement aforesaid, paid to the bank the assessments so levied upon the stockholders; and were led to believe that said assessment would be levied and collected from all of the stockholders of the bank, or that the
Offering to do equity, each of petitioners has tendered to the sheriff the interest on each' of the executions from date of issuance, at 7 per cent, per annum, together with all costs already accrued; and they hold themselves in readiness to pay said sums at all times to the clerk of the court. In the event it should be determined they are not entitled to set off the amounts paid upon the assessments so levied to restore the impaired capital of this bank, and to a cancellation of these executions, they are in equity and good conscience entitled to have the several sums so paid declared to be 'a trust fund, impressed with' a trust, and that said sums so paid be declared to be a preferred claim against the funds of this bank now held by the superintendent of banks, and be paid to petitioners in the respective amounts so paid by them. Bach of them has filed an affidavit of illegality to the levy of the executions; and these affidavits are pending in the superior court. Petitioners pray that the sheriff and the superintendent of banks be enjoined from selling their property under said executions; that the executions be delivered up and canceled; that the several sums paid to said bank by petitioners upon the assessment to restore its impaired capital be impressed with a trust, and be held an equitable set-off against the executions; that in the event it be determined they are not entitled to have said amounts applied as a set off, the sums so paid be declared to be a preference in their favor against the funds of
By amendment the plaintiffs made these allegations: The banking department waived the filing of formal claims by each of petitioners; and for this reason they did not file their claims as a preference for the amounts each had paid into the bank for the purpose of repairing its capital stock. Shortly after the bank was taken over by the superintendent of banks their claims were presented to Lifsey, the first liquidating agent of the bank, then to Compton, the present liquidating agent of the bank, and also to the superintendent of banks; all of whom agreed that the claims of plaintiffs were just, that they would be adjusted on the basis of a preference, and that it would not be necessary to file formal written claims. The banking department through its officers and agents maintained this attitude, promising adjustment on that basis, until just prior to the filing of the petition in this case. On March 1, 1926, Patton paid a voluntary assessment of $200, and transferred three shares of his stock to the Bankers Trust Company, which was done in accordance with the agreement above set out, and with the consent and approval of the superintendent of banks.
By another amendment the plaintiffs alleged that at the time of the demand by the superintendent of banks on the bank to restore its capital stock by assessment against the stockholders, the Bankers Trust Company had a central bank in Atlanta, was the financial agent and part owner of a number of banks in this State, had a very close connection with the banking department, was the adviser with the superintendent of banks as to all the banks in its chain and of which it was financial agent, was considered not only solvent but very strong financially, and was trusted absolutely by the superintendent of banks. The agreement entered into by the Bankers Trust Company and the Bank of Lexington was fully 'approved by the superintendent of banks; and upon this agreement and promise of said company the Bank of Lexington was permitted and ordered by the superintendent to go forward and continue to operate. The superintendent of banks accepted the agreement and promise of the Bankers Trust Company as so much
The defendant demurred to the petition as amended, upon the grounds that (1) it set forth no cause of actions; (2) there is no equity in the bill; (3) the plaintiffs had not filed with the superintendent of banks their claims for the amounts alleged to be due by them, as required by law; and (4) the allegations of the petition do not authorize the granting of the relief prayed. The defendants further demurred specially on various grounds. The judge sustained the demurrer, and the plaintiffs excepted.
Can amounts'paid by stockholders in a bank on an assessment levied against them to restore the impaired capital of such bank be set off against assessments subsequently levied by the superintendent of banks to pay the depositors of the bank when it became insolvent and was taken over by that officer for liquidation? This question must be answered in the negative. The payment of an assessment to make good the impaired capital of a bank is one made in satisfaction of an obligation due the bank. Acts 1925, pp. 119, 126; 12 Park’s Code Supp. 1926, § 2267(d). The assessment to pay depositors in an insolvent bank, after it is taken over by the superintendent of banks for liquidation, is made to pay the liability of stockholders to depositors therein. Acts 1919, p. 189; Acts 1925, pp. 119, 133; 12 Park’s Code Supp. 1926, § 2279(a). As the liability of stockholders, under an assessment to restore impaired capital, is one to the bank, and as the assessment to pay depositors is one to the latter, the payment of the former can not be set off against the payment of the latter assessment, for lack of mutuality. Debts, as a general rule, must be mutual between the same parties, to be set off against each other. Civil Code (1910), § 5668. There is nothing in the record in the present
This ruling is in accordance with outside authorities. In Citizens Bank v, Needham, 120 Kan. 523, 45 A. L. R. 1202, 244 Pac. 7, it was held that an assessment of bank stock to make good an impairment of capital, and an assessment on stockholders under the double-liability provisions, subserve entirely distinct and wholly different purposes, since one is an incident of operation and the other an incident of liquidation. In Delano v. Butler, 118 U. S. 634, 653 (7 Sup. Ct. 39, 30 L. ed. 260), the Supreme Court of the United States held that “The assessment imposed upon the stockholders by their own vote, for the purpose of restoring their lost capital, as a consideration for the privilege of continuing business, and to avoid liquidation under § 5205 of the Revised Statutes, is not the assessment contemplated by § 5151, by which the shareholders of every national banking association may be compelled to discharge their individual responsibility for the contracts, debts, and engagements of the association. . . The obligations of the shareholders under the two sections are entirely diverse, and payments made under § 5205 can not be applied to the satisfaction of the individual responsibility secured by § 5151. Scovill v. Thayer, 105 U. S. 143 [26 L. ed. 968].” So in Andrew v. Farmers Trust & Savings Bank, 204 Iowa, 243 (213 N. W. 925, 56 A. L. R. 521), it was held that “A bank stockholder voluntarily paying an assessment, prior to the closing of the bank, for making good impairment of capital in accordance with a resolution of the board of directors, on suggestion of the superintendent of banks, is not entitled to credit therefor on a compulsory assessment, enforced by statutory authority making such stockholders liable to creditors on insolvency, since the two funds are for entirely distinct purposes.” Where the capital of a bank has become impaired, and an
But it, is insisted by counsel that if for any reason the sums paid by the petitioners to restore the impaired capital of the bank can not be set off against the executions which have been issued to enforce their liability to stockholders, then such sums so paid should be declared impressed with a trust and refunded to each of them. Counsel base this contention upon the well-known principle that trusts are implied (1) when the legal title is in one person, but the beneficial interest, either for the payment of the purchase-money, or for other circumstances, is either wholly or partially in. another, and (2) where from the nature of the transaction it is manifest that it was the intention of the parties that the person taking the legal title shall have no beneficial interest. Civil Code (1910), § 3739. In support of this proposition counsel cite First National Bank v. Citizens Bank, 150 Ca. 601 (104 S. E. 426), in
In its last analysis the contention of the petitioners is based upon the theory that the payment to this bank of the assessments upon their shares of stock, to restore its impaired capital, were made for the purpose of restoring its impaired capital in full; that the payments were made in trust for this purpose only, and could not be used by the bank until its capital was fully restored; that the use of the sums paid by petitioners upon the assessments against their stock, before the sum total of the payments were sufficient to entirely restore the impaired capital of the bank, was a breach of this trust, for which the bank became liable to petitioners who paid their assessments; and that petitioners were entitled to recover from the bank the amounts paid by them on these assessments on their stock with preferences. We can not agree to this contention. When the capital stock of any bank becomes impaired or reduced as much as 10 per cent, of its par value from any cause, it is the duty of the superintendent of banks to require it to make good its impaired capital stock within 60 days, by an assessment of its stockholders. When this requirement is made, it is the duty of the officers and directors of a bank to immediately call a special meeting of the stockholders for the purpose of making an assessment upon the stockholders, sufficient for the purpose of covering the impairment of the capital of the bank, payable in cash. At any such meeting a majority of the stock outstanding shall be deemed a quorum, and such assessment may be made upon a majority vote of the quorum present. Acts 1925, pp. 119, 126; 12 Park’s Code Supp. 1926, § 2267(d). As we have seen, this assessment is the price which stockholders must pay in order to prevent the liquidation of the bank by the superintendent of banks. If any stockholder refuses or neglects to pay any assessment which may be levied by the stockholders’ meeting for the purpose of making good any impairment or reduction of the capital stock of said bank within 30 days after such' assessment shall have been levied, the directors of the bank shall have the right to sell to the highest bidder at public outcry, for cash, a sufficient amount of the stock of such
There is no allegation in the petition that the money paid by petitioners upon the assessments of their stock was not used to restore, at least in part, the impaired capital of this bank. The foundation of the right of petitioners to defend on the ground that money paid by them upon these assessments constituted a trust fund is that such trust fund was still in existence. Taking the petition most strongly against the pleaders, the inference is that these funds were to restore the impaired capital of the bank, and took it out of the hands of the liquidating officer from March, 1926, to July 14, 1926. So we are of the opinion that the facts alleged in the petition do not show a trust in favor of the petitioners in the amounts paid upon the assessments against their stock for the purpose of repairing the capital stock of this bank. The relation of trustee and cestui que trust, as to this matter, is not shown by the allegations of the petition. The facts that the Bankers Trust Company had a central bank in Atlanta, Avas the financial agent and part OAvner of a number of banks in this State, had a very close connection AAdth the banking department, Avas the adviser AAdth the superintendent of banks as to all banks in its chain and of Avhich it Avas financial agent, Avas considered not only solvent, but very strong financially, and Avas trusted absolutely by the superintendent
Any agreement between the bank and its stockholders by which the latter should not be required, in the event the superintendent of banks took it over for liquidation, to pay assessments levied against them on their stock for the purpose of paying depositors, if they had paid their assessments to make good the impaired capital stock, was illegal and void; and such stockholders would not be entitled to recover from the bank, or the superintendent of banks, when it had been taken over by this officer for liquidation, amounts so paid by them on the assessments against their stock. Markus v. Austin, supra; Austin v. Fleming (Tex. Civ. App.), 290 S. W. 835; Sanger v. Upton, 91 U. S. 56 (23 L. ed. 220); Scovill v. Thayer, supra; Austin v. Connellee (Tex. Civ. App.), 292 S. W. 613. Stockholders paying assessments to restore
Judgment affirmed.