Sessions v. Bennett

155 Ga. 193 | Ga. | 1923

Hines, J.

(After stating the foregoing facts.) Can the superintendent of'banks,” when he lias taken possession of the assets of an insolvent bank for the purpose of liquidation under the act creating the banking department of this State, sue on a demand or debt due the bank in his own name? “As a general rule, the action on a contract, whether express or implied, or ■whether, by parol or under seal, or of record, must be .brought' in the name of the party in whom the legal interest in such contract is vested.” Civil Code (1910), § 5516. So it has beén held that a receiver in chancery can not maintain an action at law in his own name, unless he has in himself the legal title. Murtey v. Allen, 71 Vt. 377 (45 Atl. 752, 76 Am. St. R. 779). So where a receiver, is .appointed by a court to. “ collect, take .possession of, preserve, and Gare for ” the property of ah insolvent corporation,. his appointment. does not transfer' to him title to choses .in action so that he .can' sue -thereon in his own name,. Hayward v. Leeson, 176 Mass. 310 (57 N. E. 656, 49 L. R. A. 725). But a receiver may she .in his own name where he is ex-pressly authorized so to do :by statute. North American Bank v. Wheeler, 28 Conn. 433 (73 Am. D. 683). A receiver can liker wise sue in his-own. name when authorized by decree of the court appointing him. Davis v. Gray, 16 Wall. 203 (21. L. ed. 447); Castleman v. Templeman, 87 Md. 546 (40 Atl. 275, 41 L. R. A. 367, 67 Am. St. R. 363).

Where a receiver appointed under a statute is a quasi-assignee of an insolvent corporation, or he is made the representative of creditors, he can sue upon claims due such corporation in his own name. Under the. national-bank act, the comptroller of the currency is authorized, when any association refuses to pay its circulating notes, to forthwith appoint a receiver, who shall “take possession of the books, records, and assets of every' description of such association, collect all debts, dues, and claims belonging ■to such association, and, upon the order of a court of record of competent jurisdiction, may sell or compound'all bad or doubtful debts, and on a like order sell all the real and personal property of such association, on such terms as the court shall direct; and may, if necessary to pay the debts of such association, enforce' the individual liability of the stockholders provided for by the twelfth section of this act.” 13 Stat. 114, § 50 (U. S. Comp. .St. § 9821).-The Supreme 'Court of the United States held that “ A receiver of a national bank, appointed by the comptroller of the .currency-under the 50th section of the national-banking act, may sue for demands due the bank in his - own -name as receiver, or in the name of the bank.” Bank v. Kennedy, 17 Wall. 19 (21 L. ed. 551). Under the act creating the department of banking of this State, the superintendent of banks is clothed with the same powers as a receiver of a national bank association, appointed by the comptroller of the currency. This act declares that “the superintendent shall collect all debts due and claims belonging to such bank, and by making application to the superior court of the county in which such bank is located, or to the judge thereof if said superior court be not then in session, may procure an order to sell, compromise, or compound any bad or doubtful debt or claim, and on like order the superintendent may sell the real and personal property of such bank on such terms as the court, or the judge thereof, shall direct.” The similarity between this act and the national-bank act on this subject is striking. This State statute was evidently modeled upon the national-bank act. So if the receiver of a national-bank association can sue on such claims and debts under the power to “ collect all debts, dues, and claims belonging to such association,” we see no reason why the superintendent of banks, under the same power given him by our statute, can not sue on debts due a State bank whose assets he has sequestered for liquidation. Bullock v. Oliver, ante, 151 (116 S. E. 893).

Furthermore, while the act creating the department of banking of this State does not expressly declare that the title to claims due an insolvent bank, when the superintendent takes possession thereof for liquidation, shall vest in him, he is made by such act a quasi-assignee of all the assets of such bank. Ga. Laws 1919, pp. 138, 154, art. vii, §§ 1-88. The superintendent is a statutory receiver. Bennett v. Wheatley, 154 Ga. 591 (115 S. E. 83). Under our státute, the superintendent of banks does not occupy the position of an ordinary chancery receiver or arm of the court appointing him. He is a representative of the creditors of the bank and is a quasi-assignee, and as such may sue on claims due the bank either in his own name or in the name of the bank.

Judgment affirmed.

All the Justices concur, except Bussell, 0. J., and Athinson, J., disqualified.