Fish v. Olin

Munson, J. It is claimed in support of the demurrer that the receiver of a national bank cannot maintain an action at law in his own name in the courts óf this state; and Murtey v. Allen, 71 Vt. 377, 45 Atl. 752, is one of the authorities cited. It was held in that case that the only remedies at law available in this state to a foreign receiver are those given him by the common law, and that his appointment does not confer the legal title essential to the maintenance of a suit at law. Without considering whether any other or different question can arise in this case because of federal supremacy, we pass at once to the inquiry whether the federal law gives to a receiver of this class the legal title to. the property covered by his appointment. The arguments drawn by defendant’s counsel from the general provisions relating to the receiver’s duties are not very conclusive. The legal title may rest in the receiver, whatever the restrictions placed upon his independent action. The fact that he holds the property merely to work out the purposes of a certain trust does not indicate that the legal title is elsewhere. The duties of an ordinary trustee relate wholly to the rights of his beneficiaries, but he holds the legal [124] title for the benefit of his trust. It is not claimed that this question is disposed of by any definite provision of the statute, and we must look to the decisions of the United Statds Supreme Court for whatever may have been said' by way of construction. The general relation which the receiver sustains to the scheme of the statute is set forth in Kennedy v. Gibson, 8 Wall. 498, where it is said that the receiver is the instrument of the comptroller; that it is for the comptroller to decide when it is necessary to enforce the personal liability of the stockholders; that when the whole amount is sought to be recovered the proceeding must be at law; that the receiver is the statutory assignee of the association, and the proper party to institute all suits; that they may be brought both at law and in equity, in his name or in that of the association. The following cases may also be referred to as bearing upon some or all of these propositions. Bank of Metropolis v. Kennedy, 84 U. S. 19; Richmond v. Irons, 121 U. S. 56; Witters v. Sowles, 61 Vt. 366, 18 Atl. 191. It is said in Earl v. Pennsylvania, 178 U. S. 449, that the statute contemplates that all the assets of the suspended bank shall pass in the first instance to the receiver; but the connection is not such as to give the expression any special significance upon the quejstion of title. It was considered in Scott v. Armstrong, 146 U. S. 507, that, the charter having been forfeited and the bank dissolved by decree of the Circuit Court, the title to the assets was necessarily thereby transferred to the receiver. This would seem to imply that no transfer of the title had been effected by the previous appointment of the receiver. In Bank of Selma v. Colby, 88 U. S. 609, a case cited in the above opinion, there had also been a decree forfeiting the charter and dissolving [125] the bank. Reference should be had in this connection to Bank of Bethel v. Pahquioque Bank, 81 U. S. 383, where it is said' that the appointment of a receiver does not work a dissolution of the bank, but that it continues to- exist as a legal entity, and may sue and be sued in all cases where it is necessary that the-corporate name be used for the purpose of closing up its affairs. But whatevér the expression in Scott v. Armstrong may be thought to indicate, it is to be noted that in Bushnell v. Leland, 164 U. S. 683, decided in 1897, the case of Kennedy v. Gibson is referred to with the fullest approval. Suits by national bank receivers to enforce the statutory liability of stockholders have been maintained without question in the state courts for many years. Some of these suits were in states where the procedure is in accordance with the rules of the common law, and the views expressed in the decisions of other states, afford support to the claim that the* receiver is vested with the legal title. Davis v. Weed, 44 Conn. 569; Chicago Fire Proofing Co. v. Park National Bank, 145 Ill. 481; Brinckerhoff v. Bostwick, 88 N. Y. 52; O’Connor v. Witherby, 111 Cal. 523; Hill v. Graham, 11 Col. 536; Thompson v. Schaetzel, 2 S. D. 395. We have not found' in our examination of the United’ States cases any direct statement that the receiver has the legal title by virtue of his appointment. The plaintiff does not cite-us to any case which he claims to be in terms conclusive upon this matter; but he insists that when the language of the statute, the judicial comments upon it, and the course of procedure are considered, there is no escape from the conclusion that the receiver is regarded by the federal courts as possessed', of the legal title. We are disposed to consider the statement in Kennedy v. Gibson, that the receiver is the statutory assignee of the [126] .association, a sufficient indication that he has the title required by our courts, notwithstanding the further statement that he has power to sue at law in the name of the association. Indeed, the designation of the receiver as a “statutory assignee,” if the term is to be given its full significance, definitely classels ■him1 with those receivers who1 have the legal title. The circuit courts of the United States have apparently taken this view ■of the case. Stanton v. Wilkeson, 8 Ben. 357; Casey v. La Societe de Credit Mobilier, 2 Wood 77. It is said in the case last cited that the receiver’s title is the same as that of an- assignee in 'bankruptcy. Substantially the same is said, but without citation of cases, in Beach on Receivers § 481, and in High on Receivers § 359. If it be true that the United States Supreme Court, as .matter of construction, treats the assignee as having the legal .title, we cannot treat him1 differently. It is our duty to follow the construction adopted by that court, whether it be a definite .construction given to' the particular provision, or a construction .apparent from its treatment of the statutory system of which that provision is a part. We think it is clear that the United States Court treats the receiver as having the legal title to the right in question. Judgment reversed, demurrer overruled, declaration adjudged sufficient, and cause remcmdéé.