309 U.S. 190 (1940), 246, Deitrick v. Greaney

Docket Nº:No. 246
Citation:309 U.S. 190, 60 S.Ct. 480, 84 L.Ed. 694
Party Name:Deitrick v. Greaney
Case Date:February 12, 1940
Court:United States Supreme Court

Page 190

309 U.S. 190 (1940)

60 S.Ct. 480, 84 L.Ed. 694

Deitrick

v.

Greaney

No. 246

United States Supreme Court

Feb. 12, 1940

Argued January 10, 1940

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE FIRST CIRCUIT

Syllabus

1. A receiver of a national bank, representing creditors, may compel payment of a promissory note knowingly given to the bank by one of its directors as a substitute for shares of its own stock illegally purchased and retained by the bank, the note having been delivered upon the understanding that it was not to be paid, and that the bank was to retain its interest in the stock. P. 196.

The purpose of the National Bank Act in prohibiting the purchase by a bank of its own stock is to prevent impairment of its capital resources and consequent injury to creditors in the event of insolvency. The provisions requiring periodic examinations and reports are designed to insure prompt discovery of violations of the Act, and prompt remedial action by the Comptroller. These purposes would be defeated, and the command of the statute nullified, if a director or officer, or any other by his connivance, could place in the bank's portfolio his obligation, good on its face, as a substitute for its stock illegally acquired, and if he remained free to set up that the obligation was, in effect, fictitious, intended only to aid in the accomplishment of the injury at which the statute is aimed.

2. It is immaterial that the bank's officers were participants in the illegal transaction, and that the receiver has not shown that creditors were deceived or specifically injured as the result of the illegal contract. Rankin v. City National Bank, 208 U.S. 541, and Deitrick v. Standard Surety Co., 303 U.S. 471, distinguished. P. 198.

3. Judicial determination of the legal consequences of acts condemned by the National Bank Act involves decision of a federal question. P. 200.

103 F.2d 83 reversed.

Certiorari, 308 U.S. 535, to review a judgment which reversed in part a judgment recovered in a suit by the Receiver to collect an assessment upon shares of an insolvent national bank, and to collect a promissory note found among its assets.

Page 191

STONE, J., lead opinion

MR. JUSTICE STONE delivered the opinion of the Court.

The question to be decided is whether a receiver of a national bank may compel payment of a promissory note knowingly given to the bank by one of its directors as a substitute, among its assets, for shares of its own stock

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illegally purchased and retained by the bank, but with the understanding that it was to retain its interest in the stock, and that the note was not to be paid.

Petitioner, receiver appointed by the Comptroller of the Currency for the Boston-Continental Bank, a national banking association, brought suit against respondent, a director of the bank, and others, in the District Court for Massachusetts to collect an assessment upon shares of stock in the insolvent bank and to recover on respondent's promissory note, found by the receiver among its assets.

The trial court found that the Boston National Bank, predecessor of the insolvent bank, had acquired by purchase 190 shares of its outstanding capital stock in violation of R.S. § 5201, 12 U.S.C. § 83, which declares that "No association shall . . . be the purchaser or holder of any such shares;"1 that respondent, as a means of concealing the illegal acquisition of the stock and of enabling the bank to retain its ownership of the stock, prevailed upon his codefendant Karnow to execute an accommodation note, payable to the bank, the proceeds of which were deposited in another bank to the credit of respondent who then paid them to the Boston National Bank for the 190 shares of stock which were then transferred to the respondent on the books of the bank.

Following a renewal of the Karnow note, respondent transferred the shares to him on the books of the bank,

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and, upon consolidation of the Boston with the Continental National Bank, to form the Boston-Continental National Bank, of which petitioner later became receiver, new shares of the consolidated bank were issued in exchange for the old. Part of them were sold, and the proceeds used in reduction of the Karnow note. Respondent then gave to the bank his own note for the balance, in substitution for Karnow's note, and caused the remaining shares to be transferred to the name of Mahoney, also a defendant in the suit, without informing him of the transfer.

The court found that the entire transaction was devised and carried out by respondent for the purpose of concealing the bank's ownership of the stock by ostensibly removing the shares of stock from its assets and carrying the successive notes in their stead as receivables on the books of the bank, with a secret agreement that the stock should be held for the Boston and later for the Boston-Continental Bank, [60 S.Ct. 482] without liability on the part of the maker of the note. The court found liability of respondent for the assessment upon the shares held by Mahoney for his account, concluded that he was estopped to deny liability on the note, and decreed accordingly that respondent alone should pay the stock assessment and the amount due on the note, 23 F.Supp. 758.

The Court of Appeals for the First Circuit reversed so much of the decree as allowed recovery on the note. 103 F.2d 83. It confirmed the finding of the trial court. But it held that the circumstances which they detailed did not preclude the defense of want of consideration to the demand of the receiver, more than to that of the bank itself.

We granted certiorari, October 9, 1939, on petition of the receiver, because of the public importance of the question in the administration of the National Bank Act and of the conflict of the decision below with that of the

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Court of Appeals for the Fourth Circuit in Federal Reserve Bank v. Crothers, 289 F. 777, and that of the Fifth Circuit in Bohning v. Caldwell, 10 F.2d 298.

The National Bank Act constitutes "by itself a complete system for the establishment and government of national banks." Cook County National Bank v. United States, 107 U.S. 445, 448. In addition to the sections of the Act conferring on national banking associations the authority to conduct a public banking business, the Act contains numerous provisions designed for the protection of the bank's depositors and other creditors. It establishes minimum requirements for the amount of capital with which a bank may begin business, R.S. § 5138, 12 U.S.C. § 51, and makes special provisions for securing the payment into the bank of the authorized capital, R.S. §§ 5140, 5141, 12 U.S.C. §§ 53, 54. It prohibits the purchase by a bank of its own shares of stock, and their retention when purchased, R.S. § 5201, 12 U.S.C. § 83. Impairment of capital of an association through its withdrawal by payment of dividends or otherwise is prohibited, R.S. § 5204, 12 U.S.C. § 56. Any bank whose capital has become impaired is required, under direction of the Comptroller, to make up the deficiency by assessment of its shareholders, and, in the event of its failure to do so, a receiver may be appointed to wind up its business, R.S. § 5205, 12 U.S.C. § 55.

To insure performance of these duties, and as a safeguard to creditors and the public, violation of the provisions of the Act by any director or officer of the bank, or by any person aiding or abetting him, is made a criminal offense, R.S. § 5209, 12 U.S.C. § 592, and, in the event of such a violation, the association may be required to forfeit all its rights and privileges, R.S. § 5239, 12 U.S.C. § 93. Further, by R.S. § 5240, 12 U.S.C. §§ 481, 484, the Comptroller of the Currency is required to appoint

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examiners who shall examine the affairs of every bank at least twice in each calendar year, with power to administer oaths and examine officers and agents of the bank under oath, and who "shall make a full and detailed report" of the bank to him. By R.S. § 5211, 12 U.S.C. § 161, every association is required to make to the Comptroller of the Currency not less than three reports each year exhibiting in detail and under appropriate heads the resources and liabilities of the association, and the Comptroller is given power to call for special reports whenever, in his judgment, the same are necessary in order to obtain a full and complete knowledge of the condition of the reporting bank.

The obvious purpose of prohibiting the purchase by a bank of its own stock is to prevent the impairment of its capital resources, and the consequent injury to its creditors in the event of insolvency. The provisions of the Act requiring periodic examinations and reports, and the powers of the Comptroller, are designed to insure prompt discovery of violations of the Act, and, in that event, prompt remedial action by the Comptroller. These purposes would be defeated, and the command of the statute nullified, if a director or officer, or any other by his connivance, could place in the bank's portfolio his obligation, good on its face, as [60 S.Ct. 483] a substitute for its stock illegally acquired, and if he remained free to set up that the obligation was, in effect, fictitious, intended only to aid in the accomplishment of the injury at which the statute is aimed.

Here, respondent, with full knowledge of the unlawful purpose to conceal the presence of the stock among the bank's assets, gave, in exchange for it, first, another's note, and then his own, knowing that it was to be availed of as an apparently valid and lawful asset, so as to forestall the remedies available under the statute for the unlawful

Page 196

purchase. The notes were thus carried as receivables on the books of the bank for a period of more than two years, respondent's own note or renewals of it being lodged with the bank from May 4, 1931, until the bank closed its doors in December, 1931.

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