Garden City Banking & Trust Co v. Geilfuss

PiNNey, J. 1. The right of a banking corporation, created and existing under the general banking law of the state, to make a valid assignment of all its property and assets for the payment of its debts in the manner and form and to the effect prescribed by the statute, was very properly conceded by counsel who argued in support of the orders appealed from. Like trading, manufacturing, and other business corporations, the Commercial Bank had an absolute right of disposition of its property and assets, as full and ample as a natural person, unless restrained, expressly or by implication, by the general banking law or some other statute of the state. We have not been referred to, and do not know of, any limitation on the powers of banking or pther corporations in this respect; and as the right of private corporations in general to make such assignments has been so universally recognized and supported in this — 617 — and other states, in view of the great increase’ of such corporations of late and the great proportion of the business of the country conducted by them, the question of the right of a banking or other private corporation to make such an assignment, if not expressly or impliedly forbidden by its charter or other positive law, must be regarded as clear and undoubted as that of a natural person. The duty of a banking or other corporation to devote all of its property to the payment of its debts stands upon the same aground and does not differ from that of a natural person, and, in the absence of any restriction, is one of the implied powers of the corporation. 2. It is not contended that the assignment in question is subject to any legal infirmity or taint of fraud, but the entire controversy grows out of the claim that the proceedings instituted in the case of Aschermann against the bank, several days after the assignment was perfected, in which the stock, property, things in action, and effects of the bank were sequestered, as it is claimed, and Geilfuss (already the assignee of the bank under its assignment) was appointee! receiver of the same, operated to supersede and vacate the assignment and impose upon the property and assets of the bank a different rule of distribution from the one prescribed by the assignment, so as to entitle Milwaukee County to a preference of payment under the statute (S. & B. Ann. Stats, secs. 3217, 3245) relating to proceedings against corporations. By the statute (S. & B. Ann. Stats, sec. 1693a) it is provided that all preferences in assignments for the benefit of one creditor over another, “except for the wages of laborers, servants and employees earned within six months prior thereto, shall be void; ” and, by sec. 1693c, that “the claims of all servants, clerks, or laborers for personal service or wages owing from the assignor for services or labor performed for the three months preceding such assignment, — 618 — shall be preferred over the claims of all other creditors, and shall be paid first by the assignee, after the payment of costs, debts due the United States or the state of "Wisconsin, all taxes and assessments levied and unpaid, expenses of the assignment and executing the trust.” It is plain that, had the instrument of assignment directed a preference of payment of the debt of the bank to Milwaukee County over its general creditors, the assignment would have been absolutely void, and it is very certain that in the absence of such provision any such preference of payment allowed by the‘ assignee would be a palpable abuse of his trust and a conversion of trust funds for which-his bondsmen would be liable. Considerations of public policy and the inconvenience which may flow from this conclusion cannot be allowed to prevail against the plain and positive language of the statute. We cannot look elsewhere for a declaration of the public policy of the state; and the language of the statute, allowing preferences in certain cases only, has a negative force and denies them in all others. If, however, the proceeds of the property and assets so assigned are to be administered and distributed by the receiver under the authority of the court in the action of Aschermann against the bank, it is claimed that a preference of payment is prescribed by secs. 3217 and 3245, already referred to, over all other claims, “ for the payment of taxes and debts due to the United States and the state of Wisconsin, and any county, city, town, or village thei’ein.” It is a'matter of no importance to the decision that the circuit court having jurisdiction of the proceedings in the voluntary assignment also appointed the receiver, nor that the assignee is the same person afterwards so appointed. The controversy in these cases resolves itself into the single question whether the proceedings in the case of Ascher-manh against the bank superseded or vacated the prior assignment, or furnished any ground for an adjudication to — 619 — that effect. It must be conceded, we think, that the assignment by the bank vested the stock, property, things ini action, and effects of the bank in Geilfuss, as assignee, in trust for all its creditors, and that they thereby acquired in a perfectly lawful and proper manner, and upon a valjd consideration, a vested right to have the same converted into money and appliedpaHpassu to the payment of their respective debts. • Their rights were as clearly and as certainly fixed in this respect, beyond the power of the assignor or any one else to recall or revoke them, as if they had been secured to them by a valid mortgage of the property regularly executed. Courts of law would recognize the legal title- of the assignee, and protect him in his legal ownership of the property assigned; and elaborate provisions exist for the execution of the trusts of the assignment under the supervising direction and authority of the circuit court. All actions for the recovery of the assigned estate or any interest therein, or for the recovery of property conveyed or transferred in fraud of creditors, or the transfer or conveyance of which is void by reason of being preferential or otherwise, are required to be brought only in the name of the assignee. S. & B. Ann. Stats, sec. 1693b; Valley Lumber Co. v. Hogan, 85 Wis. 366. If necessary, the court could remove a delinquent assignee and appoint another. S. & B. Ann. Stats, sec. 1102. In brief, elaborate and efficient provisions exist for the conversion of all the estate assigned into money, and a fair and legal application of it to the payment of the debts of the bank. No occasion whatever is shown to have existed for the interference of a court of equity'to protect the rights and interests of those interested in the trusts of the assignment, or any reason why they should not be fully executed, unless the sequestration of the property of the bank and appointment of a receiver in the case of Aschermann against the bank have the extraordinary effect ascribed to them, and wholly destroy, or — 620 — furnish ground for subverting, the trusts of an assignment free from any taint of fraud or imputation of illegality. 3. The statute (S. & B. Ann. Stats, secs. 3216, 3211) under which the proceeding in the case of Aschermann against the bank was instituted is purely remedial, and gives no countenance to the idea that prior lawfully existing rights are to be displaced or in any manner disturbed by it; nor is there any authority, so far as we are advised, for holding that such a proceeding is designed to have any retroactive effect; nor is it either necessary or just that it should have such effect. It is quite sufficient, for all purposes of justice, that the remedy should be as broad, comprehensive, and complete as upon a creditors’ bill or in a bankruptcy proceeding. The title of a receiver or assignee under such proceedings has no retroactive effect to disturb prior existing rights, unless they are in fraud of creditors or in contravention of some express statute. It is provided, in substance, that after judgment against a corporation and execution thereon returned unsatisfied in whole or in part, upon petition or action brought, the circuit court within the proper county “ may sequestrate the stock, property, things in action, and effects of such corporation, and appoint a receiver of the same;” that is to say, the court may take and set aside the property of the corporation from its custody or possession, or.from the possession of any contending parties, and take possession of it, in order to enforce obedience to the final judgment or to preserve it during the time the proceeding is pending, and the court may appoint a receiver of the same. The same general rules apply to a sequestrator as to a receiver. In the final order in any such action, “ the court shall direct a just and fair distribution of the property of such corporation and of the proceeds thereof to be made among the fair and honest creditors of such corporation in proportion to their debts respectively, who shall be paid in the order prescribed in section 3245,” which — 621 — provides for preferences other and different from those allowed in voluntary assignments. Now, the property and assets of the corporation, as we have seen, had wholly passed to and become vested in Geilfuss as assignee. The corporation had no property which could go to sequestrators of a receiver under such a proceeding, and if was not the intention of the statute that the court should sequestrate in this proceeding, and appoint a receiver for, property which the corporation had lawfully and honestly conveyed to other parties for entirely proper and legitimate purposes. The ends of justice require no such extraordinary or unusual construction of this statute. The statute contemplates and requires only that an administration of the property and of the affairs of the corporation shall be had, and that all its property and effects which it had and owned at the time of the commencement of the proceedings shall go into the hands of the receiver when appointed, and be converted and applied to the payment of its fair and honest creditors in the order specified. The title which a receiver takes under a proceeding of the kind in question is very fully, and, as we think, completely, defined in the case of Powers v. C. H. Hamilton Paper Co. 60 Wis. 28, in which it is held that the powers of such receiver “ are far more extensive than those of an assignee in a voluntary assignment ” as they then existed, and he had “the powers, and performed the functions, of a receiver in a creditors’ suit proper, of on proceedings supplementary to execution;” and that he may, “under the direction of the court, maintain an action against any person holding any property of the defendant corporation in secret trust for it, or to recover any property which has been conveyed by it in fraud of its creditors.” It is very true that in such a proceeding the court may lawfully assert, through its receiver, authority and control over all property of the corporation, and restrain all other actions or proceedings con — 622 — cerning the same; "yet the ultimate relief to be granted in favor of creditors is simply the conversion of the property of the corporation into money, and its appropriation to the payment of its debts in the manner specified in the statute. It is laid down, as a general principle applicable to receivers, that “ the appointment of a receiver does not operate to divest liens previously acquired on the property of the debtor by other creditors acting in gobd faith, but it is regarded as having been made subject to such rights and liens as may have been previously acquired by other judgment creditors, who will not be divested of their liens by virtue of the subsequent receivership; . . and, in general, it may be said that a receiver over a debtor’s property occupies the same relation towards the proceeds or fund derived from it as the debtor himself.” The receiver can obtain no other or greater rights, save in the case of property fraudulently transferred or conveyed (High, Rec. § 410, and cases cited); and when a receiver has been appointed under this statute the title .to all the property of the corporation vests in him as trustee for the benefit of creditors and stockholders. He holds the property of the corporation for the benefit of all the parties interested in it. Beach, Priv. Corp. §§ 772, 786. The appointment of a receiver has been said to be an equitable execution. The receiver is virtually a representative of the court and of all the parties in interest in the litigation wherein he is appointed. Tayl. Priv. Corp. § 542; Davis v. Gray, 16 Wall. 203, 218. Manifestly this equitable execution cannot go, in a proceeding such as this, against property the corporation did not own at the time it was instituted. He has no power to set aside legal and valid acts of the debtor, but such as are illegal and forbidden by law he can successfully assail. Edw. Rec. 365; 2 Story, Eq. Jur. § 829. In Wiswall v. Sampson, 14 How. 64, it is laid down that a receiver will be appointed against a party having possession under — 623 — legal title, if the court is satisfied that such party has wrongfully obtained that interest in'the property; thus, where fraud can be proved, and immediate danger is likely to result if possession pending the litigation should hot be taken by the court in the mean time. The effect of the appointment in such a case is not to oust any party of his right to the possession of the property, but merely to retain it for the benefit of the party'who may ultimately appear to be entitled to it; and, when the party entitled to the estate has been ascertained, the receiver will be considered his receiver, and the master will be usually directed to inquire what incumbrances there are affecting the estate, and into the priorities, respective!y; but, without some equitable showing, no receiver can be appointed against the legal title, and certainly none where, as in this case, it is admitted .that it was honestly and legally acquired. It follows from these views that upon the conceded facts the property, assets, and effects assigned to Geilfuss, as as-signee for the benefit of the creditors of the bank, could not by any possibility be sequestered in the Asehermann Case, or the receivership in it extended over the same. The assignee was the owner of this property by title not subject to any infirmity or condition subsequent, and when the receiver was appointed in the Asehermann Case, so far as we are advised, the corporation had no stock, property, things in action, or effects whatever. All its property, by the assignment, had lawfully passed to a third party; and, although it continued to exist as a corporation, it is scarcely to be presumed, and it is not claimed in fact, that it had acquired new capital or property with which to conduct or carry on any business within the few days that intervened between the date of the assignment and the appointment of the receiver. The case of Ballin v. Loeb, 78 Wis. 404, was relied on to show that the proceedings in the Asehermann Case operated — 624 — to supersede and vacate the assignment, and that therefore the proceeds of the property of the bank should be distributed according to sec. 3245. Although in the opinion in that case there is some general language commending a fair and equal distribution, and denouncing as more selfish than just that kind of diligence by which one creditor of an insolvent corporation secures to himself a prior right to its property and an unequal advantage over the other creditors, yet it will be found, upon a careful examination of the case, that it does not support the contention for which it is cited. After very properly maintaining the right of the court to enjoin all other creditors from pursuing remedies, and holding that officers of the corporation may be compelled to deliver to the receiver all property of the corporation held by them on attachment or execution, the real point and effect of the decision is thus stated: “ It [the property of the corporation] is all sequestered, and all of it must go into the hands of the receiver, to be disposed of by him alone as officer of the court, and all persons having any of the property must be ordered to deliver it to him. All proceedings by any other creditors, in any other way, or in any other court, must be restrained; and, if a sheriff or other officer have any of the property in his hands under such proceedings, it must be delivered to the receiver; and all such other creditors must come into this action for any ■share of the property, or for any remedy, else this proceeding would he ineffectual.” So, it is there held that the liens and rights of other creditors lawfully acquired against the property of the corporation will follow it into the hands of "the receiver, and be recognized and enforced in the usual method upon an intervening petition. The liens and rights of such parties, if valid, attach to the fund in the hands of the receiver, and it will be administered accordingly. Walling v. Miller, 108 N. Y. 173, 177. To the same effect is Wiswall v. Sampson, 14 How. 66, 67, where it is held that “ the — 625 — ■property is a fund in court to abide the event of the litigation. . . . It is true, in administering the fund, the court will take care that the rights of prior liens or incumbrances shall not be destroyed, and will adopt the proper measures, by reference to the master or otherwise, to ascertain them and bring them before it. t Unless the court be permitted to retain the possession of the fund, thus to administer it, how can it ascertain the interest in the same to which the prosecuting judgment creditor is entitled, and apply it upon his demand? ” And the same rule has been recently applied in the case of Ellis v. Vernon Water Co. 23 S. W. Rep. 858, 862, where it is said- “'The receivership does not destroy any liens that may have been acquired before the appointment, but the remedy for their enforcement •should be sought in the court in which the whole estate is being administered.” This, in substance, is the rule announced in Ballin v. Loeb, 78 Wis. 404, and shows that the liens against the property in such a case are not vacated; and, as to the assignment in question in Ballin v. Loeb, it appeared that it was collusive and the result of a conspiracy with the corporation and its directors to obtain an unjust preference over other creditors, and was therefore fraudulent and void. Ballin v. Loeb does not justify the conclusion that the assignment of the bank to Geilf uss was vacated or affected in the slightest manner by the subsequent proceedings in the Asehermann Vase, and wholly fails to show that the receiver in that case, as such, has any authority whatever to interfere with the property assigned or its proceeds. Any other rule would be productive of wrong and injustice, and introduce into the administration of estates assigned by corporations for the benefit of their creditors great embarrassment and uncertainty. It follows, from these views, that the order of the circuit court appealed from by the Garden City Banking & Trust Company and others in the matter of the assignment of the — 626 — Commercial Bank of Milwaukee must be reversed, and the cause remanded to the circuit court, with directions that the assignee proceed in bis capacity as such, and not as receiver, to administer the assets and property of said Commercial Bank according to law, notwithstanding his appointment as such receiver, and that this cause be remanded for further proceedings according to law. It is manifest that the receiver, Oeilfuss, did not, as such,, have the possession and control of the stock, property,, things in action, and effects of the Commercial Bank of Milwaukee theretofore assigned to him as assignee, and had not on hand any money whatever that should be ordered to be paid over in the case of Aschermann against the bank. Whether the claim of Milwaulcee County against the bank is a preferred one, under sec. 3245, is not determined, as at present it does not appear that there is or will be any fund to distribute under that section, and as yet the question is an abstract and not a practical one. Should occasion require, this claim may be renewed. The order that Oeilfuss, as receiver in that case, pay to Milwaukee County the sum of §50,000 on account of its alleged preferred claim, is erroneous and must be reversed, and the cause remanded for further proceedings according to law. t By the Court.— Judgment in these cases is ordered accordingly.