Bennett v. American Bank & Trust Co.

Atkinson, J. The ruling announced in the first headnote does not require elaboration. It remains to consider the case as made by the answer in the nature of a cross-petition. This counter-claim related to the same statutory liability for the benefit of depositors, to which the execution issued by the superintendent of banks referred. It was insisted that the office of superintendent of banks being a creature of the statute, and the statute having provided, in section 20 of article 7, a remedy by issuance of execution, to be employed by the superintendent of banks in collecting the statutory liability, that remedy was exclusive and therefore the superintendent of banks could not maintain a suit in the courts to recover such liability. The statutory liability arises under section 1 of article 18 of the act of 1919 (Acts 1919, p. 135), which in part declares that “each stockholder . . shall be . . individually liable, equally and ratably (and not one for another), to depositors of such bank for all moneys deposited therein, in an amount equal to the face value of their respective shares of stock.” This clause is substantially a restatement of a similar provision in the act. of 1893 (Acts 1893, p. 70, section 8). Prior to that act there was no general leuw creating such stockholder’s liability. Wheatley v. Glover, 125 Ga. 710 (3) (54 S. E. 626). Referring in part to the same liability, it is declared in section 7 of article 18 of the act of 1919: “The individual liability of stockholders . . shall be assets of such bank, to be enforced only by and through the superintendent of banks.” In section 7 of article 7 of that act it is declared: “The superintendent shall collect all debts due and claims belonging to such bank.” This part of the act was amended by the act of 1922 (Acts 1922, pp. 63, 65), where it was declared in'part as follows: “Eor the purpose of executing any of the powers and performing any of the duties hereby conferred upon him, the superintendent may, in the name of the bank, institute, prosecute, and defend any and. all actions, suits, and legal — 725 — proceedings . . upon any cause of action which is vested by law in such bank or in the stockholders or creditors thereof.” These powers are separate and additional to the powers of the superintendent of banks to issue executions, as provided in section 20 of article 7 of the act of 1919, and should be construed as authorizing the superintendent of banks to maintain a suit against stockholders upon their liability to depositors as provided in such statute. This being so, the superintendent of banks is not limited by the act to the remedy provided in section 20 of article 7 for the issuance of executions. This ruling comports with the decision in Sessions v. Bennett, 155 Ga. 193, 196 (116 S. E. 300), where it was said: “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, §§ 1-28. The superintendent is a statutory receiver. Bennett v. Wheatley, 154 Ga. 591 (115 S. E. 83). Under our statute, 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.” See also Newton v. Bennett, 159 Ga. 426 (126 S. E. 242); Anderson v. Bennett, 160 Ga. 517 (128 S. E. 660). Sufficient has been said concerning the act of 1919 as amended to distinguish the case from State v. Western & Atlantic Railroad Co., 136 Ga. 619 (71 S. E. 1055), and similar cases. That case referred to a statute creating a tax, and concerning it it was held: “When the statute undertakes to provide adequate remedies, and those given do not embrace an action at law, a common-law action for the recovery of the tax as a debt will not lie.” That ruling does not oppose the ruling made in the present case, which is founded on express provisions of the statute as amended, giving the superintendent of banks power to sue. Another contention of the plaintiff was that it was not liable, because it was purely a banking institution created under the laws of this State and prohibited by the provisions of section 23 of article 19 of the general banking act (Acts 1919, pp. 135, 201) — 726 — from acquiring stock in the Bank of Donalsonville, and therefore its act in taking the stock of the Bank of Donalsonville was ultra vires and void, and could not be the basis of a stockholder’s liability. The act above referred to provides that “no bank shall subscribe for or purchase any stocks” except as specified therein. The facts of the ease do not bring it within any of the exceptions, and it is not necessary to state them. The plaintiff bank, organized under the laws of this State, was engaged in the ordinary banking business, in the usual course of which it received, as collateral security for a debt, shares of the capital stock in the Bank of Donalsonville, which it subsequently sold under a power of sale and purchased, receiving a new certificate of stock, under private agreement to give the borrower the benefit of any subsequent sale it might be able to make of the stock. By this transaction the plaintiff did not “subscribe for or purchase” the shares of stock within the meaning of the foregoing statute. The words just quoted from that statute were used synonymously, and were intended to prevent banks from subscribing for shares of stock in another bank or purchasing such shares as an independent transaction, and not to deny power to a bank to accept in good faith shares of stock in another bank as collateral security for a valid debt, or to become the purchaser thereof at a sale had for the purpose of collecting such valid debt. In this view it becomes unnecessary to consider whether the statutory liability would attach to the plaintiff if the act of acquiring the stock had been ultra vires. There was evidence to the effect that the plaintiff was the holder of certificate number 223 for the 36 shares of the capital stock in the Bank of Donalsonville; that it acquired the stock in the following manner: The plaintiff received two certificates of stock of said corporation, one for 20 shares and another for 16 shares, from J. S. Shingler in pledge as collateral security to a promissory note executed by Shingler to the plaintiff. Payment of the note was in arrears, and the plaintiff was unable to find a purchaser at private sale for the shares of stock, and finally, under exercise of the power of sale contained in the note, exposed the shares of stock at public sale before the court-house door. By consent of Shingler the sale was without previous advertisement and upon an agreement between himself and the plaintiff that, if the — 727 — plaintiff should be the purchaser and it could subsequently sell the shares of stock, Shingler should have credit or an allowance for whatever the stock might bring. The plaintiff became the only bidder at the sale, and purchased the stock. After the sale there was no change in the certificates for a substantial time during which the cashier of the Bank of Donalsonville was requested to sell the shares of stock. They were not sold; but the plaintiff, fearing bankruptcy proceedings against Shingler, requested the Bank of Donalsonville to issue to the plaintiff the certificate number 223 covering the 36 shares of stock. The certificate was issued, and the plaintiff held it for about one year before the Bank of Donalsonville was declared to be insolvent and taken in charge by the superintendent of banks, being all the time unable to find a purchaser for it. The ledger of the Bank of Donalsonville showed that the plaintiff was the holder of this certificate number 223 for 36 shares of stock, and written in pencil immediately following the name of plaintiff on the ledger was the word “pledgee.” It was a contention of the plaintiff bank that it was merely a pledgee of the stock and was not a stockholder within the meaning of the general statute creating stockholder’s liability. A statute was embodied in section 9 of the special act of 1889 (Acts 1889, pp. 522, 527), creating a charter for the Brunswick State Bank. It was there declared: “The stockholders . . shall be [liable] to the creditors of such corporation, . . individually . . equally and ratably, and not one for another as sureties, , . for all contracts and debts of said corporation, to the extent of the amount of their stock therein, at the par value thereof, respectively, at the time the debt was created, in addition to the amount invested in such shares.” The above-quoted provision of the statute was involved in Chatham Bank v. Brobston, 99 Ga. 801 (2) (27 S. E. 790), which was a suit to recover the statutory liability of stockholders imposed by the charter of the Brunswick State Bank. It appears from the record of file in this court that several of the defendants whom the books of the bank showed to be stockholders were shown to hold the shares of stock only as collateral security, and that tire trial judge held that the defendants were liable as holders of the stock, notwithstanding they held it only as collateral security. On review in this court it was held: “Where the charter of a bank imposes on all of its stockholders — 728 — personal liability to its creditors, such liability attaches as well to those who acquire a complete legal title to stock of the bank by having the same transferred to them as collateral security for debts due by the transferrers, as to those who purchase such stock outright.” The statute creating the liability is so similar to the statutory liability clause contained in the act of 1919, supra, as to render the decision there made controlling in the present case. So, if it be conceded that the plaintiff held the stock only as collateral security, it must be held that it was a stockholder within the meaning of the general statute imposing liability upon stockholders of banks for the benefit of depositors. The foregoing ruling is put upon the construction of the statute imposing a statutory liability, which, according to the ruling in Chatham Bank v. Brobston, supra, applies to persons shown by the books of the bank to be stockholders, though the stock be owned in a limited sense such as collateral security for a debt, to the same extent as it may apply to such persons holding absolute title to the stock. In these circumstances the decision in the case of Ullman v. Brunswick Title Guarantee &c. Co., 96 Ga. 625 (24 S. E. 409), and other similar decisions, drawing distinction between the status of title to negotiable paper held as collateral security and title held absolutely, and applying such distinction to the facts of those cases, have no application to the question now under consideration. The evidence showed that all of the unpaid depositors in the Bank of Donalsonville, for whose benefit the superintendent of banks was suing to recover the stockholders’ statutory liability at a time when the bank was temporarily suspended, and in order that it might not be put in liquidation, entered into written agreements with the bank whereby each accepted time certificates for the amount of money each had on deposit, the form of the certificates being as follows: “Bank of Donalsonville. No. 2699. “Donalsonville, Ga., ...........19...........$............ “This certifies that.......has deposited in this Bank... .Dollars. Payable to the order of......in current funds on the return of this certificate properly endorsed......months after date with interest at the rate of......per cent, per annum- No interest after maturity. ........................Cashier.” It was contended by the plaintiff that this change in the char — 729 — acter of deposits was such a novation as to create the relation between the bank and its depositors of common debtor and creditor, and to take such depositors without the class of depositors as contemplated in the statute for whom there should be the statutory liability by the stockholders. Under proper construction of the banking act (Acts 1919, p. 135, section 2 of article 1), there is no merit in this contention. It is there provided: “The term ‘depositor’ as used in this act means any person who shall deposit money or commercial paper in any bank, either on open account, subject to check, or to be withdrawn otherwise than by check, whether interest is allowed thereon or not, and shall include holders of demand and time certificates of deposit lawfully issued.” This ruling is in harmony with the decision in Lamar v. Taylor, 141 Ga. 227 (6) (80 S. E. 1085), where’it was held: “Holders of certificates of deposit are depositors within the meaning of the provision of the charter of a bank, imposing on stockholders a .statutory liability, in addition to the full payment of the amount of their subscriptions, for the payment of depositors.” See also Wilkes v. Arthur, 91 S. C. 163 (74 S. E. 361); Murphy v. Pacific Bank, 130 Cal. 542 (62 Pac. 1059, 1061); 22 Columbia Law Review, 175, note; Magee on Banks and Banking, 274-276. The court excluded testimony of the witness VanLandingham to the effect that the Bank of Donalsonville was insolvent, on the ground that the testimony was a mere conclusion of the witness. The evidence was offered in connection with other testimony of the witness to the effect that he was cashier of the bank, and other testimony of the witness stating facts upon which the proposed statement was based. It is provided in the Civil Code (1910), § 5874: “Where the question under examination, and to be decided by the jury, is one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor; but if the issue is as to the existence of a fact, the opinions of witnesses, generally, are inadmissible.” It was held in Crawford v. Andrews, 6 Ga. 244 (2) : “The opinion of a witness may be given in evidence as to the insolvency of a party, provided it is accompanied by the facts upon which the opinion is founded.” See also Kirkman v. Ashford, 145 Ga. 452 (5) (89 S. E. 411). It was erroneous to exclude the testimony from evidence. — 730 — The rulings announced in tbe seventh and eighth head-notes do not require elaboration. Judgment reversed on the main MU of exceptions, and affirmed on the cross-bill. All the Justices concur.