Robinson v. Turrentine

• Citation: 59 F. 554
• Decision Date: 09 January 1894
• Docket Number: 37.
• Parties: ROBINSON v. TURRENTINE et al.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

59 F. 554

ROBINSON v. TURRENTINE et al.

No. 37.

United States Circuit Court, E.D. North Carolina.

January 9, 1894

Daniel L. Russell, for plaintiff.

John D Bellamy, Jr., and Herbert McClammey, for defendants.

SEYMOUR District Judge.

This is an action at law brought by Robinson, receiver of the First National Bank of Wilmington, N. C., to recover an assessment of 100 per cent. which the comptroller of the currency has duly made on the shareholders of the bank. The feme defendant was, it is alleged, at the time of its suspension, a shareholder of the stock of the bank to the amount of 20 shares of the par value of $100. M. B. Turrentine is a married woman. After her marriage and after the passage of the act of 1871 of North Carolina, (Code, § 1826,) the stock in question 'was transferred to and acquired by her,' to use the language of her answer. Her husband, the other defendant, never gave his written consent to the purchase. Mrs. Turrentine is not a 'free trader,' under Code §§ 1828, 1831, 1832.

So, we have the case of a married woman, a citizen of North Carolina, who, without the written consent of her husband acquired stock in a national bank, and held the same at the time that, upon its insolvency, it passed into the hands of a receiver; of an assessment upon stock of the bank by the comptroller, and a suit on such assessment; and of a defense contending that under the laws of North Carolina a married woman who has acquired national bank stock without the written consent of her husband is not liable for an assessment on such stock. If the feme defendant was the owner of the stock, she is liable for the assessment. Section 5151 Rev. St., imposing individual responsibility, to the amount of the par value of their shares, upon all stockholders in national banks, makes no exceptions is favor of married women. Keyser v. Hitz, 133 U.S. 138, 10 S.Ct. 290. Persons holding stock as executors, administrators, guardians, or trustees are not personally so liable, (Rev. St. § 5152,) but the estates and funds in their hands are. By the banking laws of the United States all the shares in the stock of national banks are liable to an assessment like the one levied on the stock of plaintiff's bank. To hold that a state law, were there such a law, could except certain shares from the liability, would enable states to defeat the policy of the federal government in establishing the national banking system. That the congress has power to establish and legislate for such banks has not, since 1819, been an open question. McCulloch v. Maryland, 4 Wheat. 316. If a purchase of stocks in a national bank by a married woman without the written consent of her husband gives her the ownership of such stock, judgment must be given against the feme defendant. If she owned the stock at the failure of the bank, she is liable to the assessment; if she did not, she is not liable. While the federal government exclusively controls the question of the liabilities of stockholders in national banks, it is not doubted but that a state has power to say that for reasons seeming good to its legislature, and not in conflict with organic law, a particular class of persons shall not be permitted to own particular classes of property. It may lawfully be provided that a guardian or other trustee may not invest in securities other than those specified by statute. Probably it might be held that a statute might constitutionally provide that purchases by guardians, of, say, railroad stock, in the name of their trust, should be absolutely void. In such case it might be held that an attempted transfer of such stock so purchased passed no title; that the stock still remained, although duly assigned and transferred, on the corporation books, the property of the vendor; and that the guardian could recover the money paid from the vendor. It would, I think, require strong and plain words to induce courts to give such a construction to an act of the legislature.

If Mrs. Turrentine's purchase of the 20 shares in the stock of the First National Bank of Wilmington did not pass the title in it to her, various inconveniences ensue. All persons dealing with her are presumed to know the law. Payments of dividends to her before the failure of the bank were not good payments. A person advancing money to her on a hypothecation of the stock for her necessary expenses would lose his security. A purchaser of the stock from her would acquire no title. But it is needless to elaborate the many complications that would ensue from such a state of uncertain ownership of bank stock standing in the name of married women. I will only add one. Upon such a supposition the 20 shares of the feme defendant still belong to the person who perhaps 20 years ago transferred them to her, and he is still liable to the assessment.

Does the legislation of North Carolina bear such a construction? It certainly is nowhere enacted, directly, that a married woman shall not own stock in national banks, or stock that, upon the failure of the corporation, shall be liable to assessment. In fact, there is no statute that requires the assent of a husband to any purchase of property by a wife. The constitution of North Carolina, in article 10, § 6, reads as follows:

'The real and personal property of any female in this state acquired before marriage, and all property real and personal to which she may after marriage become in any manner entitled, shall be and remain the sole and separate estate and property of such female, and shall not be liable for any debts, obligations or engagements of her husband, and may be devised and bequeathed, and with the written assent of her husband conveyed by her as if she were unmarried.'

The written assent of the husband is thus required to validate a married woman's conveyance of land. This assent may be signified simply by joining in the deed. Farthing v. Shields, 106 N.C. 289, 10 S.E. 998. But no consent of her husband is required for the conveyance of real estate to her. The act of 1871 (1 Code, § 1826) reads thus:

'No woman during her coverture shall be capable of making any contract to affect her real or personal estate except for her necessary personal expenses, or for the support of the family, or such as may be necessary in order to pay her debts existing before marriage, without the written consent of her husband, unless she be a free trader as hereinafter allowed.' These two provisions are the only ones material to the matter in controversy that have been presented to the court. Section 1826 does not, in terms, require the assent of the husband to an assignment to the wife of personalty, any more than does the constitution require his assent to a conveyance to her of real estate. But it is contended that the sale of bank stock to the defendant was itself a contract, and that it is such a contract as must necessarily affect both her real and personal estate, because, in the event of the failure of the bank, her separate estate may be taken by reason of the statutory assessment to which the holders of bank stock are liable. It seems to me that this contention fails to note the distinction between a

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