Alter v. Johnson

• Decision Date: 12 January 1929
• Docket Number: 28,692
• Citation: 273 P. 474,127 Kan. 443
• Parties: O. H. ALTER, as Administratrix of the Estate of I. B. Alter, Deceased, Appellant, v. CHARLES W. JOHNSON, as Receiver of the Rossville State Bank, Appellee
• Court: Kansas Supreme Court

273 P. 474

127 Kan. 443

O. H. ALTER, as Administratrix of the Estate of I. B. Alter, Deceased, Appellant, v. CHARLES W. JOHNSON, as Receiver of the Rossville State Bank, Appellee

No. 28,692

Supreme Court of Kansas

January 12, 1929

Decided January, 1929.

Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.

Judgment ordered.

SYLLABUS

SYLLABUS BY THE COURT.

1. STATUTES--Construction--Legislative Intent. A primary rule for the construction of a statute is to find the legislative intent from its language, and where the language used is plain and unambiguous and also appropriate to the obvious purpose the court should follow the intent as expressed by the words used and is not warranted in looking beyond them in search of some other legislative purpose or of extending the meaning beyond the plain terms of the act.

2. BANS--Stockholder's Double Liability--Preferences. The statute (R. S. 9-156) providing for the enforcement of the double liability of stockholders, in an insolvent bank, and that all transfers of property by a stockholder after the closing of the bank and before the payment of the double liability, shall be void, does not create a lien on the property of the stockholder nor give the receiver of the bank preference or priority of right of payment of the double liability out of the stockholder's property.

Clad Hamilton, Donald A. Campbell and Frank Flack, all of Topeka, for the appellant.

Randal C. Harvey, of Topeka, for the appellee.

Johnston, C. J. Harvey, J., not sitting.

OPINION

JOHNSTON, C. J.:

The principal purpose of this action was to secure an interpretation of statutes under which an administratrix of the estate of a deceased person and the receiver of an insolvent bank should take action and for a determination of the duties and rights of these officers in the control and disposition of property.

The Rossville State Bank was a going concern up to August 18, 1927, in which I. B. Alter was a stockholder and officer. He held stock of the bank to the extent of 188 shares. Alter died intestate on August 18, 1927, and on the morning of that day the bank was closed and placed in the hands of the banking department. Two days later Charles W. Johnson was appointed receiver of the bank and is still holding that position. On September 1 Mrs. O. H. Alter was appointed administratrix of the estate of I. B. Alter, deceased. The assets of the bank were found to be insufficient to pay the depositors of the bank, and on September 13, 1927, the receiver made a demand upon the administratrix to pay the double liability upon the 188 shares of stock held by Alter at the time of his death. This was not paid, and on January 17, 1928, suit was brought by the receiver against the administratrix upon the double liability on the Alter stock, and on May 4, 1928, judgment was rendered against the administratrix for $ 18,800 upon that liability. Before the judgment was rendered this action was brought. The estate of I. B. Alter is insolvent and it is conceded that the total assets, including personal and real property, is much less than the indebtedness of the estate. The administratrix is contending that, under the statutes relating to executors and administrators, it is her duty and she is authorized to sell the property of the estate and pay claims according to the classifications prescribed in the statute, while the receiver is contending that under section R. S. 9-156 he has a preferred and prior claim on the real estate and that the administratrix had no right to sell it and dispose of the proceeds until the claim for double liability is paid. The statute provides:

"At any time after the closing of any incorporated bank, if it shall appear to the receiver thereof that the assets of such bank are insufficient to pay its liabilities, it shall be the duty of such receiver to immediately institute proper proceedings, in the name of the bank, for the collection of the liability of the stockholders of such bank; all sums so collected to become a part of the assets of such bank and to be distributed pro rata to the creditors thereof in the same manner as other funds: Provided, That all transfers of property by a stockholder after the closing of any such bank and before the payment of the double liability as provided by this act, shall be absolutely void as against said double liability. No action by any creditor against any stockholder of such bank for the recovery of such liability shall be maintained unless it shall appear to the satisfaction of the court that the receiver has failed to commence action as herein provided."

The trial court found that there was an actual controversy between the parties and that they were entitled to an interpretation of R. S. 9-156. The interpretation placed on the statute as applied to the facts in the case was:

"1. That the defendant by virtue of his office as receiver of the Rossville State Bank, and the judgment above referred to, has a preferred claim upon all of the real property of I. B. Alter, deceased, prior and superior to all demands against the estate of the said decedent, except liens upon real estate existing before his death and claims of the first and second class, and it is the duty of the probate court to allow said claim as prior in right to all of the other classes of claims except such preexisting liens and taxes as to said real property.

"2. That said plaintiff has no legal right to transfer any property free of said preferred claim and can convey no unencumbered title thereto."

Judgment was rendered in accordance with this finding.

The principal question upon which the parties divide is, Does the liability of a stockholder in an insolvent bank constitute a lien or preferred claim upon property in the estate of a deceased stockholder which must be paid out of the property prior to all claims of creditors not otherwise secured? A negative answer to the question must be given. It is conceded that if a lien of preference is authorized the authority must be found in the language of the statute quoted. (R. S 9-156.) It is well settled that liens can only be...