Bacon v. Barber, No. 1111.

• Docket Nº: No. 1111.
• Citation: 6 A.2d 9
• Case Date: May 02, 1939
• Court: United States State Supreme Court of Vermont

6 A.2d 9

BACON
v.
BARBER.

No. 1111.

Supreme Court of Vermont. Windham.

May 2, 1939.

6 A.2d 10

Exceptions from Windham County Court; Charles B. Adams, Judge.

Action by John D. Bacon, receiver of the National Bank of Bellows Falls, against

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Richard Robbins Barber to recover an assessment upon shares of stock of the bank. Judgment based on directed verdict for defendant, and plaintiff brings exceptions.

Reversed and remanded.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Samuel H. Crosby, of White River Junction, and James Brownlee, of Springfield, for plaintiff.

Frank E. Barber and F. Elliott Barber, Jr., both of Brattleboro, for defendant.

MOULTON, Chief Justice.

This is an action brought by the plaintiff as receiver of the insolvent National Bank of Bellows Falls to recover an assessment duly levied upon the shares of the stock of that institution, of which the defendant is claimed to have been the owner on the day upon which the bank was closed. The defendant denies that he was then the owner. The cause was tried by jury, and at the close of plaintiff's evidence the trial court directed a verdict for the defendant, to which the plaintiff excepted.

There seems to be little dispute concerning the facts which the evidence tended to show. The defendant's uncle, Charles N. Robbins, died testate, his will, dated August 8, 1922, containing the following provision: "My stock in the Vermont National Bank of Brattleboro, and stock in the National Bank of Bellows Falls, Vt., I give, devise and bequeath as follows, viz: The use and income of the same to my said wife during her natural life; then use and income to my daughter, Mary Irene R. Washer during the term of her natural life—After the decease of my said daughter I give and bequeath said bank stocks to Richard Robbins Barber [the defendant] now of Montpelier, Vermont, to him and his heirs forever—". It appears by the defendant's answer that the will was filed in the probate court on August 17, 1923, and admitted to probate. The Vermont Peoples National Bank of Brattleboro was appointed trustee in 1924. The defendant was, at the date of the will, a minor, but attained his majority in 1926. Mrs. Robbins died, as appears from the defendant's answer, in December, 1931, and Irene Washer died on February 27, 1933. The stock was carried on the books of the Bellows Falls Bank in the name of the "Vermont Peoples National Bank, as trustee of the estate of Charles N. Robbins." The final account of the trustee was filed in and approved by the probate court for the District of Marlboro on June 21, 1933. The certificates of stock in the Bellows Falls Bank could not be transferred to the defendant on the books of that institution because of its insolvency, and were sent by the trustee to the defendant by registered mail on January 13, 1936; the other bank stock, duly transferred to him, was also sent in the envelope. The defendant received the certificates and has never returned them.

The National Bank of Bellows Falls was closed on March 4, 1933. A conservator was appointed, the assessment levied by the comptroller of the currency on March 12, 1934, and notice thereof was sent to the Vermont Peoples' National Bank, as trustee, on March 20, 1934. The reply acknowledged receipt, and informed the conservator that there were no assets with which to pay the assessment.

The plaintiff became receiver on August 31, 1937. He wrote several letters to the defendant concerning the payment of the assessment, and held a telephonic conversation with him about the middle of April, 1938, regarding the same matter. No payment having been made, on April 18, 1938, a notice was sent by registered mail which was returned to the receiver unopened.

The liability which is sought to be enforced arises under the "Revised Statutes of the United States, § 5151, sec. 63 and sec. 64, tit. 12, U.S.C.A., which provide that "the stockholders of every national banking association shall be held individually responsible for all contracts, debts, and engagements of such association, each to the amount of his stock therein, at the par value thereof in addition to the amount invested in such stock." This statute "contemplates that on every share of stock held in a national bank some one shall be legally liable for assessment." Riley v. Bondi, 8 Cir., 64 F.2d 515, 517; McNair v. Darragh, 8 Cir., 31 F.2d 906, 907. The liability is imposed by the statute as an incident of the ownership—Laurent v. Anderson, 6 Cir., 70 F.2d 819, 823; Scott v. Latimer, 8 Cir., 89 F. 843, 852; Christopher v. Norvell, 201 U.S. 216, 225, 26 S.Ct. 502, 50 L.Ed. 732, 736, 5 Ann.Cas. 740. The assessment made by the comptroller

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of the currency is conclusive as to its necessity and the amount to be collected. Christopher v. Norvell, supra, 201 U.S. at page 222, 26 S.Ct. at page 503, '50 L.Ed, at page 735, 5 Ann.Cas. 740; Stephens v. Hamilton, 7 Cir., 81 F.2d 324, 326; Miller v. Stock, 3 Cir., 65 F.2d 773, 774, 90 A.L.R. 1061. It is the duty of the receiver to enforce the individual liability of the stockholders. U.S.Rev.Stat. § 5234, sec. 192, tit. 12, U.S.C.A.; Barbour v. Thomas, D.C., 7 F.Supp. 271, 276.

The fact that the stock was not registered in the name of the defendant, but in the name of the Vermont Peoples National Bank as trustee is not conclusive. "That the actual owner of the stock may be held for the assessment, although his name does not appear upon the transfer books of the bank, is well settled." Early v. Richardson, 280 U.S. 496, 499, 50 S.Ct. 176, 177, 74 L.Ed. 575, 69 A.L.R. 658; Forrest v. Jack, 294 U.S. 158, 162, 5'5 S.Ct. 370, 372, 79 L.Ed. 829; 96 A.L.R. 1457, rehearing denied 294 U.S. 733, 55 S.Ct. 543, 79 L.Ed. 1262; Ohio Valley Nat'l Bank v. Hulitt, 204 U.S. 162, 167, 27 S.Ct. 179, 51 L.Ed. 423, 427; Pauly v. State Loan & Trust Co., 165 U.S. 606, 619, 17 S.Ct. 465, 41 L.Ed. 844, 849. See, also, Laurent v. Anderson, 6 Cir., 70 F.2d 819, 823; O'Keefe v. Pearson, 1 Cir., 73 F.2d 673, 97 A.L.R. 1243, 1247; Houghton v. Hubbell, 1 Cir., 91 F. 453, 455; Lucas v. Coe, C.C., 86 F. 972, 974; Keyes v. American Life, etc., Ins. Co., D.C., 1 F.Supp. 512, 513; Goess v. Brown, D.C., 12 F.Supp. 517, 518; Slaughter v. Quigley, D.C., 9 F.Supp. 130. Accordingly it has been...