No. 3688 | 5th Cir. | Jan 10, 1922
After the appellant, the receiver of the Heard National Bank of Jacksonville, Fla., had recovered a judgment, in the sum of $13,601.43 and the costs, in a suit brought by him against S- F. Travis, who at the time of the failure of said bank and of the appointment of the receiver, was a director thereof and the owner of 124 shares of its capital stock, to recover the amount due from said Travis under an assessment of $100 a share made against the bank’s shareholders by the Comptroller of the Currency, and after a return of nulla bona on an execution issued on that judgment, the bill in equity in this case was filed to subject to the satisfaction of that judg
Between the date of the appointment of the receiver on January 17, 1917, and the date of the making of the assessment against the bank’s shareholders on October 10, 1917, the, S. F. Travis Company was incorporated; S. F. Travis, with knowledge of the failure of the bank and the appointment of the receiver, transferred to that company all property belonging to him or standing in his name, except Iris above-mentioned shares in the Heard National Bank, evidence adduced tending to prove that the property so transferred was worth in excess of $300,000; and S. F. Travis transferred to his wife 495 of die 496 shares of the stock of the S. F. Travis Company issued to him when that company was organized, its total capital stock being 500 shares. The other 1 share of that stock issued to S. F. Travis was transferred by him to his son, R. L. Travis, soon after the making of the assessment against the shareholders of the bank and before the bringing of this suit. Nothing was paid 1o or received by S. F. Travis (hereinafter referred to as Travis) for the property so disposed of by him.
Nothing in the opinion rendered by the District Judge indicates that there was a finding that Travis was not the sole beneficial owner of the property disposed of by him as above stated. The evidence adduced did not warrant a finding that he was not the sole or part beneficial owner of that property until he parted with the legal title to it. The testimony of Travis himself is what must be relied on to support a finding that any one other than bimsel f was beneficially interested in that property or any of if. He testified to the following effect:
The source of properties which stood in his name was a business which was started in .1882, and was carried on successively under the names J. W. Brown & Co., New York Clothing Company, and S. F. Travis & Co., until it. was taken over by the S. F. Travis' Company. Mr. Brown was a Western man,, who spent part of several winters in Florida. While there on one of his visits he furnished $3,000, the entire capital with which the business of J. W. Brown & Co. was started. Brown and Travis were equal partners in that business, to which Brown contributed only the cash capital with which it was started, and Travis contributed his services. Not long after the business wras started, Brown sold his interest, accepting therefor six notes, for $500 each, payable to him and signed “New York Clothing Company,” the name given to the business when Jlrown sold his interest. Some time after Brown returned to his home in the West, he sent the six notes, with a letter stating that be wanted them to be given to
The opinion rendered by the District Judge shows that the dismissal of the bill was the result of the conclusions that Travis was not indebted on his stock in the failed bank when he gave away his property, and that the evidence did not show that the attacked transfers were made with actual fraudulent purpose of defeating the enforcement of his liability as the holder of that stock. We are of opinion that the ruling of the court was erroneous.
It was.decided in that case that the provision of the Washington statute of limitations applicable to a suit brought by a receiver of a national bank to enforce an assessment against stockholders was the one which provided that “an action for relief not hereinbefore provided for shall' be commenced within two years after the cause of action shall have accrued” (Ballinger’s Ann.. Codes & St. § 4805), and not the one prescribing a three-year limitation for the commencement of “an action upon a contract or liability, express or implied, which is. not in writing, and does not arise out of any written instrument” (section 4800). We do not think that anything said in that opinion supports the above-mentioned contention of counsel for tire appellees. The following is an extract from that opinion:
“In Matteson v. Dent, 176 U.S. 521" court="SCOTUS" date_filed="1900-02-26" href="https://app.midpage.ai/document/matteson-v-dent-95198?utm_source=webapp" opinion_id="95198">176 U. S. 521, the stock still stood in the name of the decedent, and it was decided that the statutory liability was a debt within the state law, but not that it was a true contract.’'
Decisions of the Supreme Court of Florida show that the words “creditors and others,” in the statute of frauds of that state, are given the most liberal construction, and embrace the beneficiaries of contingent liabilities, such as those of guarantors or sureties, from the time those liabilities were stipulated for. Alston v. Rowles, 13 Fla. 117" court="Fla." date_filed="1869-07-01" href="https://app.midpage.ai/document/alston-v-rowles-4913210?utm_source=webapp" opinion_id="4913210">13 Fla. 117; Reel v. Livingston, 34 Fla. 377" court="Fla." date_filed="1894-06-15" href="https://app.midpage.ai/document/reel-v-livingston-4914669?utm_source=webapp" opinion_id="4914669">34 Fla. 377, 16 South. 284, 43 Am. St. Rep. 202; Hayden v. Thrasher, 18 Fla. 795" court="Fla." date_filed="1882-01-15" href="https://app.midpage.ai/document/hayden-v-thrasher-4913656?utm_source=webapp" opinion_id="4913656">18 Fla. 795. Under the statute the liability of one who is a stockholder of a national hank at the time of its failure is, to the extent of the par value of his stock in addition to the amount invested therein, the same as it would have been if, by express contract and to the same extent, he had become the bank’s surety for all its contracts, debts, and engagements. The statute providing for the enforcement of stockholders’ individual liability on voluntary dissolution of a national bank by a bill in equity, in the nature of a creditors’ bill, brought in behalf of all creditors of the bank (19 Stat. 63), is a recognition of the existence of the relation of debtor and creditor between a liquidating bank’s stockholders and its creditors. That relation exists between the stockholders of a failed bank and its creditors before the accrual of a right of action to enforce the payment of the ascertained amount required to be paid. We are of opinion that at the time Travis made the above-mentioned gifts o£ his property his relation to the bank and its creditors was such as to make those gifts void as against those creditors, who are represented by the appellant.
It is not to be supposed that the statute prescribing the individual' liability of stockholders of national hanks would have been' enacted' if it had been contemplated that a stockholder, after the failure of the bank, could defeat the enforcement of his liability-by giving away all his property subject to execution. It seems that to give that effect
The decree appealed from is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
Reversed.