bank could not pay its debts and contracts and the assessment made by the Comptroller would be indulging in the realm of uncertainty which may never occur. If such reasoning is accepted, then a stockholder of a national bank could never in good faith convey any property while he owned stock without it being subject to cancellation in the event that at some future time the bank became insolvent and unable to pay its creditors."
In approving the doctrine in the McClaine Case the court said on page 628 of 7 F.Supp.: "The liability of a shareholder in a national bank to respond to an assessment in case of insolvency as prescribed by section 64, title 12 U.S.C.A. is statutory, and, upon the failure of the bank, the rights of its creditors intervene and attach. Scott v. Deweese, 181 U.S. 202, 21 S. Ct. 585, 45 L. Ed. 822; Concord First National Bank v. Hawkins, 174 U.S. 364, 19 S. Ct. 139, 43 L. Ed. 1007; Salter v. Williams et al. (D.C.) 219 F. 1017. It is for the benefit of the bank's creditors represented by the receiver of the bank, and is conditional and contingent, and the right to sue does not obtain until the Comptroller has acted, which is the basis of the suit. McClaine v. Rankin, 197 U.S. 154, 25 S. Ct. 410, 49 L. Ed. 702, 3 Ann.Cas. 500. The bank being insolvent and having creditors at the time it closed, the individual liability of its stockholders existed to such debts, contracts, and engagements of the bank."
There are some cases, as against estates, devisees, and legatees, in which it is held that the liability arises prior to the insolvency of the bank, and prior to the assessment by the Comptroller, for the purpose of charging the estates or beneficiaries with the payment of the assessment, but these decisions do not change the basic principle adopted in the McClaine Case.
As stated by Judge Kirkpatrick in the case of Rogers v. Jarden (D.C.) 3 F.Supp. 211, 213, supra: "In each case the governing consideration is the policy of the statute or law to be construed and what it was intended to accomplish."
I am convinced that, under the facts in the instant case, the doctrine of the McClaine Case is controlling; that the obligation of the defendant did not arise out of contract, express or implied, but was in the nature of a statutory liability; and that the debt arising therefrom became due and owing at the time the assessment was made. The liability of the shareholder, as to the debts of the national bank, is with relation to those debts owing at the time the assessment is made.
It is claimed by defendant that the Union National Bank was insolvent on September 30, 1931, when, for purposes of liquidation, it sold all of its assets to the Atlantic City National Bank under an agreement which, among other things, provided that the Union National Bank should, upon the expiration of the period of two years, the time fixed for liquidation, repay to Atlantic City National Bank the amounts due on unpaid notes, which were to be considered as losses. This is the liability upon which the Comptroller declared the bank insolvent and appointed a receiver and subsequently levied an assessment.
If the Union National Bank was actually insolvent on September 30, 1931, the date of the agreement, the liability of the defendant could not be fixed on that date. Many of the creditors' claims had been satisfied before the actual declaration of insolvency by the Comptroller, and it was impossible to fix the defendant's liability until after the bank had been taken over by the Comptroller.
The statute, found in 12 U.S.C.A. § 65, providing for the fixing of the liability by the court, as to banks in liquidation, could not advance the time of the defendant's liability, unless court proceedings had been taken thereunder.
In the case of Scovill v. Thayer, 105 U.S. 143, on pages 155, 156, 26 L. Ed. 968, which was an action to recover an assessment on stock of a corporation, not fully paid, and involved the time of the commencement of the running of the statute of limitations, the court, as to the time when the cause of action accrued, said:
"The question for solution is, therefore, when, under the facts of this case, did the cause of action accrue against the defendant in error? Certainly not until it became his duty to pay according to the terms of his contract or according to law.
"It is well settled that when stock is subscribed to be paid upon call of the company, and the company refuses or neglects to make the call, a court of equity may itself make the call, if the interests of the creditors require it. The court will do what it is the duty of the company to do. Curry v. Woodward, 53 Ala. 371; Robinson v. Bank of Darien, &c., 18 Ga. 65; Ward v. Griswoldville Manufacturing Co., 16 Conn. 593. But under such circumstances before there is any obligation upon the stockholder to pay without an assessment and call by the company, there must be some order of a court of competent jurisdiction, or, at the very least, some authorized demand upon him for payment. And it is clear the Statute of Limitations does not begin to run in his favor until such order or demand. Van Hook v. Whitlock, 3 Paige (N.Y.) 409; Salisbury v. Black's Adm'r, 6 Har. & J. (Md.) 293 [14 Am.Dec. 279]; Sinkler v. Turnpike Company, 3 Pen. & W.(Pa.) 149; Walter v. Walter, 1 Whart.(Pa.) 292; Quigg v. Kittredge, 18 N.H. 137; Nimmo v. Walker, 14 La.Ann. 581.
"In this case there was no obligation resting on the stockholder to pay at all until some authorized demand in behalf of creditors was made for payment. The defendant owed the creditors nothing, and he owed the company nothing save such unpaid portion of his stock as might be necessary to satisfy the claims of the creditors. Upon the bankruptcy of the company his obligation was to pay to the assignees, upon demand, such an amount upon his unpaid stock as would be sufficient, with the other assets of the company, to pay its debts. He was under no obligation to pay any more, and he was under no obligation to pay anything until the amount necessary for him to pay was at least approximately ascertained. Until then his obligation to pay did not become complete."
Hawkins v. Glenn, 131 U.S. 319, on page 332, 9 S. Ct. 739, 743, 33 L. Ed. 184, was a case involving similar questions, and the court in that case said:
"Some further observations may not inappropriately be added. Unpaid subscriptions are assets, but have frequently been treated by courts of equity as if impressed with a trust sub modo, upon the view that, the corporation being insolvent, the existence of creditors subjects these liabilities to the rules applicable of funds to be accounted for as held in trust, and that therefore, statutes of limitation do not commence to run in respect to them until the retention of the money has become adverse by a refusal to pay upon due requisition.
"But the conclusion as to the statute need not be rested on that ground; for, although the occurrence of the necessity of resorting to unpaid stock may be said to fix the liability of the subscriber to respond, he cannot be allowed to insist that the amount required to discharge him became instantly payable though unascertained, and though there was no request, or its equivalent, for payment."
Under all of the circumstances of the instant case, I am satisfied that the ownership of the stock was i the defendant at the time of assessment; that the obligation was not a provable claim against the bankrupt estate at the time of adjudication; that the discharge of defendant as a bankrupt did not relieve him from the assessment on his stock made thereafter; and that the fact that the Union National Bank went into voluntary liquidation prior to defendant's adjudication as a bankrupt could not fix the liability of defendant prior to adjudication, unless proceedings had been taken prior thereto under the provisions of 12 U.S.C.A. § 65.
The answer will be stricken as sham, the defenses "First" to "Thirteen," inclusive, will be stricken as sham or frivolous, and a rule for summary judgment will be entered for the amount of the assessment, with interest and costs.
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