77 F. 258 | U.S. Circuit Court for the District of Nebraska | 1896
This case has already been before the court upon demurrers filed to the original bill, and upon that hearing it was held that the proceeding was barred by the provisions of the statute of limitations of the state of Nebraska. Thereupon the complainant obtained leave to file an amended bill, and the case is now before the court upon a demurrer filed thereto, which again presents the question, whether it does not appear upon the face of the amended bill that the suit is barred by the lapse of time.
Briefly stated, the facts appearing on the face of the amended hill are that the Central Nebraska National Bank of Broken Bow
If a party suffer an injury or wrong by reason of a fraud practiced by another, his right to a remedy in equity will not be affected by the lapse of time until discovery of the fraud is had, provided he is not guilty of negligence in ascertaining the facts. Is this general rule, however, applicable to a case of the character of that now under consideration? In this proceeding the receiver is not seeking equitable aid to have made good to him damages resulting from a fraud practiced on him by the defendants, nor is he seeking to set aside transfers of property in order that it may be subjected to legal process. What the receiver is seeking to do in fact is to enforce the statutory liability assumed by all parties who become shareholders in national banks. The underlying theory of complainant’s case as against the German Insurance Company is that .the insurance company, in August, 1889, became the owner of 100 shares of the capital stock of the named national bank, and thereby became liable to be called upon for an amount equal to the face value of the stock in case of the insolvency of the bank; that the bank became insolvent; that a legal assessment of 90 per cent, upon the face value of the shares was duly made; that the insurance company continues liable to the call thus made, notwithstanding the transfer made to Koehler, it being averred that Koehler is-without means, and that the transfer was made to escape the liability in question. The right of action sought to be enforced by complainant is the liability imposed by the statute upon shareholders, and not a right of action created by the transfer of the stock to Koehler. The act of the insurance company in assigning the shares held by it to Koehler did not create a cause or right of action, no matter what its motive was in making the transfer. The real ground of action relied upon by complainant is that when the insurance company became a shareholder in the national bank by subscribing for and accepting 100 shares of the capital stock, it became subject to the statutory liability to respond to an amount equal to the face value of the stock held by it in case of the insolvency of the bank, and that this once existing
If, however, it be held that the case is one in which the application of the rule may be invoked, then the question arises whether the facts averred in the amended bill are sufficient to justify a court of equity in granting the relief, regardless of the lapse of time; or, in other words, whether the facts alleged excuse the delay in the institution of this suit. The general rules applicable to the question are already given by the supreme court in Wood v. Carpenter, 101 U. S. 135, and Hardt v. Heidweyer, 152 U. S. 547, 14 Sup. Ct. 671. In these cases it is declared that, if a party seeks to escape the plea of the statute of limitations on the ground that he did not discover the fraud complained of until immediately prior to the bringing the suit, he must aver and prove that he used due diligence; and this must be shown by the averments of facts, not of mere conclusions, it being “well settled that a party who seeks to avoid the consequences of an apparently unreasonable delay in the assertion of his rights on the ground of ignorance must allege and prove, not merely the fact of ignorance, but also when and how knowledge was obtained, in order that the court may determine whether reasonable effort was made by him to ascertain the facts.” Hardt v. Heidweyer, supra. In Wood v. Carpenter, supra, it is said:
• “There must be reasonable diligence; and the means of knowledge are the same thing, in effect, as knowledge itself. The circumstances of the discovery must be fully stated and proved, and the delay which has occurred must be shown to be consistent with the requisite diligence. The reply is clearly bad. It contains some vigorous declarations, but is wanting in the averment of facts which are indispensable to give it sufficiency as a pleading for the purpose intended.”
In the case at bar.the insurance company is sought to be held liable on the ground that it was the owner of 100 shares of stock in the named national bank, and, although it is admitted that this stock was transferred by the insurance company to Edward F. Koehler in September, 1890, and January, 1891, it is charged that this transfer was a fraud as against the creditors of the bank, because the bank was insolvent, and the transfer was made by the insurance company to escape liability thereon, the said Koehler being without means to respond to assessments made thereon. The question whether the liability assumed by the insurance company when it became a stockholder in the national bank was enforceable against it depended upon the character of the transfer of the stock to Koehler. When the receiver was appointed, and the comptroller ordered the assessment of 90 per cent, upon the capital stock of the insolvent bank, it became the duty of the receiver to enforce the payment of the assessment thus made against
If it was the fact that the insurance company had concealed the fact of the transfer of the stock to Koehler, a different question would be presented; but the fact is that the transfer was made upon the books of the bank. It is not charged that any concealment was practiced with regard to the transfer to Koehler, or with regard to any of the subsequent transfers, and it must be true that the receiver knew what the books of the bank showed with respect thereto, and he cannot be heard to say that he did not know what thus appeared upon the books. As receiver, complainant was charged with the duty of collecting the assessment upon these 100 shares of stock, and it was incumbent upon him to use reasonable diligence in ascertaining whether a liability for the assessment existed against the party whom he knew had transferred the stock within six months of the failure of the bank. The averments in the amended bill show that it was not through the action of the complainant that discovery was made of the facts upon which he now relies as grounds for relief against the insurance company, and as it is not averred that the complainant ever made an inquiry, or did anything looking to an ascertainment of the facts surrounding the transfer of the stock to Koehler, it follows, if complainant’s theory is correct, that by simply remaining wholly inactive the complainant could prevent the statute from beginning to run. On behalf of the diligent, equity holds that in cases of fraud the limitation begins to run from the discovery of the fraud, or from the discovery of facts sufficient to put a prudent person on inquiry; but to the negligent equity gx-ants no relief.
According to the complainant’s own showing in the amended bill, for more than four years before this proceeding was commenced he and his predecessor knew that the insurance company, not many months before the bank closed its doors, and when it was in an insolvent condition, had transferred its stock to Koehler; and, if the receivers did not know that Koehler was without means, they could readily have ascertained the facts; and yet they remained wholly inactive. Under these circumstances it must be held that during this period the statute was running, and,, the full period having elapsed after the right of action was vested in the receiver before this proceeding was commenced, it must be held that the same is barred by reason of the lapse of time.
Demurrer is therefore sustained, and the bill is dismissed on the merits, at cost of complainant.