Maddison v. Bryan

OPINION OP THE COURT WATSON, J. This action is one for the enforcement of the statutory additional liability of the stockholders of the failed State Trust & Savings Bank of Albuquerque. There were numerous defendants, .against all of whom, severally, judgments were rendered. Some of the defendants demurred to the complaint and are here complaining- of the overruling of-their demurrers. The remainder of the defendants made no appearance, but suffered judgment by default. A few of this latter class have appealed from the judgments, urging here that the complaint is so fundamentally defective as not to support the judgments. The complaint alleges, in substance, that the plaintiff, was on April 5, 1924, appointed by the district judge as receiver of the State Trust & Savings Bank (formerly American Trust & Savings Bank) in certain proceedings in which the state was plaintiff and said 'bank was defendant; that the bank was incorporated in 1912 with a capital stock of 500 shares of the par value of $100 each; that in June, 1915, the stockholders of the State Bank were also stockholders of ■the National Bank of Albuquerque, and that at that time a trust agreement was entered into, pursuant to which the stockholders of the State Bank transferred and delivered to five trustees all of the capital stock, to be held by said trustees in trust for the owners and holders of the shares of capital stock of said National Bank in proportion to their ownership of such stock; that said trust agreement was carried into effect by the transfer of the stock of the State Bank to the trustees, and by issue to the stockholders of certificates of stock of the National Bank bearing upon the reverse an indorsement to the effect that the owner of the •shares represented by such certificate was beneficially interested, by and under the trust agreement, in the capital stock of the State Bank in proportion to his ownership of stock in the National Bank, which beneficial interest should not be sold or transfered ■otherwise than by transfer of the stock in the National Bank, and that such beneficial interest should pass by such transfer. The complaint further alleged that the present holders of stock in said National Bank all hold certificates upon which such indorsement appears, evidencing their ownership of shares of the capital stock of said State Bank. It was fur-further alleged that in September, 1915, the State Bank, by amendment of its articles of incorporation, increased its capital stock to $100,000 and that the 500 shares thus created were issued to five trustees, so that each of them hold 200 shares, and that they hold the same for the' use and benefit' of the stockholders of the National Bank, in proportion to their holdings in said National Bank; namely, one share of the capital stock of the State Bank to two shares of the stock of the National Bank. The complaint then sets forth an order of the district court in the receivership proceedings, declaring the liability of the stockholders, of the State Bank for an assessment of 100 per cent, on the par. value of their stock, and directing the receiver to enforce such liability by suit or otherwise, and alleges that the defendants, naming them, are the beneficial and equitable owners, respectively, of designated numbers of shares of stock of the State Trust & Savings Bank, as shown by the stock books of the State National Bank. The trust agreement, above mentioned, is annexed to the complaint and made a part thereof as an exhibit. We shall not attempt to summarize it here, but will refer to its provisions in discussing the several points raised. Some of the appellants urged that the complaint is fatally defective, in that it fails to allege the insolvency of the bank. The statutory provision for the additional liability of stockholders of state banks is found in section 8, c. 149, Laws of 1923, amending section 40 of the Banking Code of this state (chapter 67, Laws of 1915). That section is as follows; “Sec. 8. That sec. 40, chapter 67, of the Session Laws of 1915, be and the same is, hereby amended to read as follows; “ ‘The stockholders of every banking corporation shall be held individually responsible for all contracts, debts and engagements of such corporation, each to the amount of his stock therein, at' the par value thereof, in addition to the amount invested in such stock. The stockholders in any banking corporation who shall have transferred their shares or registered the transfer thereof within six months next before the date of the failure of such corporation to meet its obligations, or with knowledge of such impending failure, shall be liable to the same extent as if they had made no such transfer, to the extent that the subsequent transferee fails to meet such liability, but this provision shall not be construed to affect in any way any recourse which such shareholders might otherwise have against those in whose names such shares are registered at the time of such failure.’ ” Section 86 of chapter 67, Laws of 1915, provides as follows: “No bank shall make an assignment for the benefit of creditors. No writ of attachment or execution shall be levied upon the property or assets of any bank when in the possession of the state bank examiner, sjmcial deputy bank examiner or receiver appointed by the court. No creditors shall maintain any action to recover upon a stockholder’s or officer’s or director’s liability while a bank is in the possession of the receiver, but such stockholder’s, officer’s and director’s liability shall be deemed an asset of said insolvent bank and such receiver shall have the sole and exclusive rig’ht to maintain such action.” It might be inferred from the former section that the additional liability is to arise upon “failure of such corporation to meet its obligations.” It might be inferred from the latter section that the liability only arises in case of insolvency of the bank. It is argued that, since the complaint does not allege the insolvency of the bank, it fails to exclude the theory that it is being wound up because of the expiration of its charter, or for violation of it. The receiver is appointed in a proceeding instituted by the Attorney General, upon full and complete report by the state bank examiner, after a thorough examination of the affairs of the bank, from which he shall become satisfied that such bank cannot resume business or liquidate its indebtedness to the satisfaction of all of its creditors. Section 32 c. 120, Laws of 1919. It is this condition of the bank that warrants a receivership, and it is this condition, we think, that is meant by the terms “insolvent bank” as used in section 86, supra. There would seem to be no basis for the claim that the bank’s insolvency must be alleged. If anything were necessary to be pleaded in addition to' the appointment of the receiver, it would be the several steps above mentioned, showing of which is required to authorize the appointment. But the judgment appointing the receiver is conclusive that the necessary steps were taken and the statutory conditions existed. It is rendered in proceedings “governed by the provisions of the general incorporation laws for the winding up of insolvent incorporations.” Section 32, c. 120, Laws 1919. That judgment is binding on the stockholders, even though they are not parties. The corporation in that proceeding stands for and represents the stoékholders. Mirabal v. Albuquerque Wool Scouring Mills, 170 P. 50, 23 N. M. 534; Jones v. Page, 190 P. 541, 26 N. M. 440. The stockholders being bound by a former judgment, and being precluded in a collateral proceeding from going back of it to question the facts upon which it was based, it would seem unnecessary to plead such facts. It is further objected that the complaint does not show that there were any debts or obligations of the bank remaining unpaid, nor that the assets of the bank, in the hands of the receiver, are insufficient to pay them, nor that all of the assets have been reduced to cash and applied to their extinguishment, leaving an unpaid balance. These objections are all based upon the doctrine approved by this court in Clapp v. Smith, 159 P. 523, 22 N. M. 153. It was there held that the statutory additional' liability was not an asset of the bank, going as such into the hands of the receiver. It was said to be a secondary liability, to be enforced only by the creditors after a deficiency of assets had been determined. Since then the statute has provided otherwise. Section 86, c. 67, Laws of 1915. It is now an asset of a bank, in the hands of a receiver, who has the exclusive right to. realize upon it. The statute does not fix any time for, nor preliminary requirements to, the commencement of suit. It is the duty of the receiver to collect the assets. It is not ’ his duty to await the tedious and endless process of determining, finally, the fact and amount of the deficiency. Pate v. Bank of Newton, 77 So. 601, 116 Miss, 666; Lynch v. Jacobsen, 184 P. 929, 55 Utah, 129; Kennedy v. Gibson, 8 Wall. 498, 19 L. Ed. 476. When all claims of creditors have been satisfied, the receiver is to make his final accounting, and any surplus assets are to be returned to the stockholders, who may then adjust any equities and rights among themselves. Section 33, e. 120, Laws of 1919. The complaint sets forth an order of the court in which the receivership proceedings are pending, declaring an assessment of 100 per cent, of its additional liability. Whether such order is necessary we need not consider- The banking code does not require it. It is perhaps required, and certainly appropriate, because of the general directing control which a court of equity exercises over its receiver. Such an order is deemed conclusive of the necessity of resorting to the additional liability. Lynch v. Jacobsen, supra; 7 Fletcher Enc. Corp. § 4237; Chavous v. Gornto (Fla.) 102 So. 754. If in fact there were no outstanding debts, or all debts had been satisfied, the liquidation would be complete, and there would be nothing further for the receiver to do except to account, which, of course, he ■could be compelled to do. It is also objected that the complaint fails to allege that any creditors of the bank became such after certain of the defendants acquired their stock- This point is not argued, and so we do not consider it. It is contended by some of the appellants that the statute imposes liability only on the legal holders of the stock, and that, as the complaint affirmatively shows that all of the stock was held by the five trustee, no recovery could be had against others. It is argued that originally, under section 40, c. 67, Laws of 1915, the equitable as well as the legal owners were liable. The amendment (section 8, e. 149, Laws of 1923), ommitted the express provision for the liability of equitable owners. Jones v. Rankin, 140 P. 1120, 19 N. M. 56, is cited to the point that the statute must be strictly construed in favor of the stockholder. Since the Legislature has removed from the statute an express provision that equitable owners are to be liable, and since the statute is to be strictly construed, it is said that there can be no doubt that none but legal owners are liable. Ordinarily this argument would doubtless be sound. We are constrained, however, by other considerations to reach a different conclusion. The first clause of section 40 c. 67, Laws of 1915,. was substantially the same as the first clause of U. S. Rev. St. § 5151. The remainder of section 40 defined the word “stockholder” to include both legal and equitable owners- The remainder of R. S. § 5151, has no application here. R. S. § 5151, was superseded in 1913 by section 23 of the Federal Reserve Act (U. S. Comp. St. § 9689). Section 40, although in form amended, was really superseded by-section 8, e. 149, Laws of 1923, the latter being the same as section 23 of the Federal Reserve Act. We are cited to no judicial construction of the federal statute in its present form. Under R. S. § 5151, it is, well established that the liability extended to the beneficial or equitable owners of the stock. Ohio Valley National Bank v. Hulitt, 27 S. Ct. 179, 204 U. S. 162, 51 L. Ed. 423. There is nothing in section 23 of the Federal Reserve Act to indicate an intention to abandon the former rule of liability as laid down in that case, and we assume that no change in that respect was contemplated or effected. Under the federal rule, the definition of “stockholder” in our section 40 was unnecessary. Without it, the statute would have been construed the same as with it. It was merely declaratory of the federal rule. It was omitted in 1923, not with any intent to change.the rule of liability, but to conform to the language of the federal statute. Being satisfied of the legislative intent, we need not consult canons of construction. To do so would be to use them to pervert rather than to ascertain the legislative will. It is vigorously urged that the trust agreement is void because it is “a veiled but perfected attempt by a national bank and ultra vires of the National Bank to own, hold, and control the capital stock of another bank.” Appellants point to the call for the meeting of stockholders of the State Bank to consider and act upon the proposition of the National Bank for a consolidation of the two banks; the National Bank to purchase the State Bank by paying one share of National Bank stock for two shares of State Bank stock- They point to provisions in the contract to the effect that the National Bank is to declare a dividend of $62,500, which is to be used to acquire the 500 shares of State Bank stock at $125 a share. The stockholders of the State Bank, on surrendering their stock to the trustees, and also surrendering their stock in the National Bank, were to receive in exchange therefor certificates representing their ownership of stock in the National Bank, with an indorsement on the back referring to the trust agreement, and reciting that the indorsement represents a beneficial pro rata ownership in the stock of the State Bank, 'which ownership passes with, and only with, the transfer of the certificate. The agreement recites that the transaction will be for the interest of the stockholders of the National Bank (who were also the stockholders of the State Bank), as it would enable said National Bank to transact for its patrons certain branches of business usually, or often, transacted by banking institutions, but not clearly included within the corporate powers of a national bank; ánd to that end it was agreed that the trustees named in the agreement should hold their offices at the pleasure of the board of directors of the National Bank, and that said board might appoint successors to said trustees. The dividends declared by the State Bank were to be paid to the National Bank, for immediate distribution, however, by it among those beneficially interested. If any of the stockholders of the State Bank should refuse to sign the trust agreement, the trustees were authorized to purchase their stock and hold it for the benefit pro rata of those who had signed;" they agreeing to contribute proportionately the sums necessary for such purpose. It was provided that no person should be entitled to share in the distribution of dividends of the State Bank except upon production of a certificate of stock in the National Bank, with indorsement showing his beneficial ownership of stock in the State Bank. This agreement was signed by the five trustees as parties of the first part and by owners of 417 of the 500 shares of the State Bank as parties of the second part. These provisions of the trust agreement are quite persuasive of the purpose to weld together the interests of the two institutions and to place the National Bank in a position to exercise complete control of the State Bank. The National Bank did not, however, become a contracting party nor agree to anything. It was never the owner of a share of the stock of the State Bank, and never had any of its assets invested therein. While it no doubt,, through its management, promoted the deal and deemed itself benefitted thereby, it was the stockholders of the two institutions who were the contracting parties. They acted as individuals, presumably in their own interest. If the virtual and practical control of the State Bank by the National Bank, through the arrangement represented in the trust agreement, were the decisive question, it would be a serious one. But is it decisive? Appellants contend that it is not within the powers of a national bank to acquire ownership of the stock of other corporations, and that if it does so the transaction is void, and the bank is not estopped to plead ultra vires if sued upon the statutory additional liability. To these propositions they cite 1 Cook on Corps. (6th Ed.) § 315; First National Bank of Concord v. Hawkins, 19 S. Ct. 739, 174 U. S. 364, 43 L. Ed. 1007; Cal. Nat. Bank, v. Kennedy, 17 S. Ct. 831, 167 U. S. 362, 42 L. Ed. 198; First Nat. Bank of Charlotte v. Nat. Exc. Bank of Baltimore, 92 U. S. 122, 23 L. Ed. 679; Second Nat. Bank of Parkersburg v. U. S. F. & G. Co. (C. C. A.) 266 F. 489; Morris v. Third Nat. Bank of Springfield, 142 F. 25, 73 C. C. A. 211; Jackson v. W. U. Tel. Co. (C. C. A.) 269 F. 598; Shaw v. Nat. Ger. Am. Bank, 132 F. 658, 65 C. C. A. 620; 3 Fletcher Enc. Corp. p. 2606. The correctness of these propositions is not challenged by the appellee. His answer is that the State National Bank made no purchase of the stock of the-State Trust & Ssjvings Bank and that no attempt is being made to hold it to any liability. This answer seems to be sufficient. The decisions cited absolved banks from liability, because they had no power to make the contract from which the liability was-claimed to arise. The individual stockholders are under no such disability. If the decisions had been on grounds of public policy, on the theory that one banicing corporation should have no connection with or control over another, it might do to argue that the unlawful purpose could not be indirectly accomplished through the action of the stockholders. No such contention is here made. That the bank had no power to subscribe for stock of another bank is no ground for claiming that its stockholders individually had no such power. In one of the cases cited in the note to l.Cook on Corporations, section 315, quoted by appellants, it was held that— “Where a bank desires to subscirbe to the stock of a trust company but cannot legally do so, and its directors give their note in payment, they are liable on the note to the receiver of the trust company.” Adams v. Kennedy et al., 34 A. 659, 175 Pa. 160. Appellants assume that the -trustees were in fact the representatives of the National Bank. There seems to be nothing in the complaint or the trust agreement to warrant this view. It could be based only on the provision that they were to hold at the pleasure of, and their successors should be appointed by, the board of directors of the National Bank. They undertook, however, by the agreement, no duty to the bank. Their whole obligation is to the stockholders, for whom they expressly acknowledge themselves as trustees with respect to the title to the shares. The •assumed fact not being true, we need not consider any legal consequences which might result if it were true. Appellants next contend that, even if the trust agreement is not void, it cannot affect the rights of those who did not sign it, nor impose liabilities upon them. Their argument is that the liability of a stockholder for assessments is contractual; that the agreement, as incorporated by reference in the complaint, •appears to have been signed by the holders of 417 only of the 500 shares of the then outstanding stock; that, while the complaint is sufficient (if the trust agreement is valid) to bring home liability to those who signed the agreement, it is insufficient as to defendants not signing. A fair interpretation of the allegations of the complaint leads to the conclusion that all of the original 500 shares were delivered to and reissued to the trustees, and that the beneficial ownership thereof was thereafter represented by indorsement upon the reverse of certificates of stock in the National Bank. This, appellants concede. The 83 shares the owners of which did not sign the agreement must have been acquired either by voluntary surrender or by purchase. Those who voluntarily surrendered their shares and at the same time surrendered their certificates in the National Bank, receiving in exchange new certificates of the National Bank stock with the indorsement defining, by express reference to the trust agreement, their beneficial interest in the State Bank, clearly, and upon well-established principles, were bound contractually to the same extent as if they had signed. If there were any shares acquired by purchase by the trustees, under the provisions of the contract, they were held by the .trustees for the pro rata benefit of those who had sighed or ratified the agreement. The owners of such shares, having parted with their interest, drop out of the case. Thus, liability as of that time is traced to the holders of certificates of stock in the National Bank so indorsed. The beneficial interest clearly followed any transfers of this stock, and the liability just as clearly. So, when it is alleged that the defendants named hold and own National Bank certificates, all of which certificates bear the indorsement, and the amount of their respective holdings is stated, liability is brought home to them on account of their pro rata beneficial interest in the stock of the State Bank. Objection is finally made by appellants that the complaint and judgments, are not confined to the liability on account of the original stock involved in the trust agreement. After the trust agreement had been carried into execution, as they assume, the articles of incorporation were amended, the capital stock in-ore sed by an additional 500 shares, and these shares issued to the trustees.. They contend that, as to the increase, the allegations of the complaint do not constitute a cause of action. They urge that it is not shown that any of appellants authorized the increase, paid in any of the new capital, or even knew of the increase. Hence, they say, there are no allegations affecting them with a contractual liability, except mere conclusions of law, not admitted by the demurrer. The demurrer specifies many respects in wkich the complaint fails to state a cause of action. The objection here urged is not among the specifications. Whether this would of itself preclude appellants from raising the question here for the first time we do not decide, because another consideration is controlling. As we have concluded, the complaint states a cause of action against the defendants, including the appellants, to the extent of a total liability of $50,000, to be borne pro rata. The allegation of the increase of capital stock, if stricken, would still leave a cause of action. Considered, it does not negative nor nullify the cause of action stated. If the complaint states a cause of action, the demurrer was properly overruled. The objection here considered goes only to the amount of the judgment, to which no exception was taken. If a complaint is so fundamentally defective that it will not support a judgment, it may be attacked for the first time in this court. It seems apparent that the present' objection was not in the minds of counsel when the cause was heard in the court below on their demurrer, nor when judgment was rendered. They then chose to stand upon the objections specified in their demurrer rather than to answer. Compelled to overrule their specified objections, we cannot of course reverse a judgment supported by a complaint which states a cause of action, because perchance, under a state of facts not pleaded, the judgments are excessive. Being of the opinion that there was no error in overruling the demurrer, we affirm the judgments. The • cause will be remanded, with direction to enter judgment against appellants and the sureties on their supersedeas bonds- PARKER, C. J., and BICKLEY, J., concur: