Chapman v. Pettus

• Decision Date: 21 January 1925
• Docket Number: (No. 7261.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 269 S.W. 268
• Parties: CHAPMAN, State Banking Com'r, v. PETTUS et al.
• Court: Texas Court of Appeals

Page 268

269 S.W. 268

CHAPMAN, State Banking Com'r, v. PETTUS et al.

(No. 7261.)^*

Court of Civil Appeals of Texas. San Antonio.

January 21, 1925.

Rehearing Denied February 11, 1925.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Suit by J. L. Chapman, State Banking Commissioner, against Mrs. T. W. Pettus and husband. Judgment for named defendant. Judgment for plaintiff against other defendant, and plaintiff appeals, and other defendant cross-appeals. Reversed and remanded.

Gaines, Quin, Harley & Gaines, of San Antonio, for appellant.

Nelson Lytle and Marcus W. Davis, both of San Antonio, for appellees.

SMITH, J.

In February, 1913, T. W. Pettus purchased 150 shares of the capital stock of the First State Bank & Trust Company of Taylor, Tex., of the total par value of $15,000, and a certificate thereof was issued by the bank to Pettus. A few weeks later Pettus assigned said certificate to "Mrs. T. W. Pettus," reciting in the written assignment that the same was made "for value received," and authorizing transfer of the stock to be made on the books of the banking corporation. This was done in due course, and the stock was reissued to and in the name of "Mrs. T. W. Pettus." The Pettuses were husband and wife, and are still so; but that fact was not affirmatively shown either on the books of the corporation or in any of the written instruments referred to.

Mrs. Pettus' name remained on the books of the bank as the owner of the stock for more than ten years, and until, in June, 1923, the bank failed and its doors were closed and its affairs taken over by J. L. Chapman, state banking commissioner, in pursuance of familiar provisions of our statutes. Subsequently, the commissioner gave notice to Mrs. Pettus that as a stockholder in the bank she had been assessed an amount equal to the sum of the capital stock appearing in her name on the bank's books, as was also provided by law. When Mrs. Pettus failed to respond to this assessment, the commissioner brought this suit against her for the amount thereof, $15,000, joining T. W. Pettus, pro forma, as a party defendant.

Mrs. Pettus contested the suit, contending that because of her coverture, of which appellant had constructive notice, she could not be held to the statutory liability upon the assessment; and claiming, for the first time, that although the bank's books showed her to be the owner of the stock in question, she was not in fact such owner, and never had been, that T. W. Pettus was the real owner of the stock, which had been transferred to and held by her only as a trustee for him, and solely for his convenience. The trial court found the facts involved in this defense to be true, and as there was evidence to support those findings we adopt them as the findings of this court.

Upon a trial without a jury the court rendered judgment in favor of Mrs. Pettus as against the commissioner, and in favor of the latter against T. W. Pettus for the amount of the assessment, in response to alternative pleadings of the commissioner. The latter alone has appealed, although appellee has presented a cross-assignment of error, which will be noticed later.

The primary question presented by the appeal is the one of whether or not married women owning stock in state banks may be held liable, as all other classes of such stockholders admittedly are, for the assessment authorized by our Constitution and statutes to be levied against such stockholders. There is no constitutional or statutory provision which expressly fixes such liability upon married women. If that liability exists, then, it does so only by necessary implication arising from the general provisions of section 16, art. 16, of the Constitution, and article 552, R. S., when joined to the specific provisions of article 1123, R. S. We have reached the conclusion that the liability exists, and should be enforced. It is provided in the Constitution that the Legislature shall by general laws authorize the incorporation of state banking institutions, "and shall provide for a system of state supervision, regulation and control of such bodies which will adequately protect and secure the depositors and creditors thereof," and that —

"Each shareholder of such corporate body incorporated in this state, so long as he owns shares therein, and for twelve months after the date of any bona fide transfer thereof, shall be personally liable for all debts of such corporate body existing at the date of such transfer, to an amount additional to the par value of such shares so owned or transferred, equal to the par value of such shares so owned or transferred." Section 16, art. 16.

In obedience to the constitutional mandate, the present state banking statutes (articles 370-574) were enacted by the Legislature, and the quoted provision fixing the liability of each stockholder for the debts of the bank was carried forward into those statutes. Article 552. It will be observed that neither in the constitutional provision, nor in the banking acts passed in pursuance thereof, is there any provision expressly subjecting married women to the personal liability fastened upon stockholders for the debts of banking concerns, and for the additional assessments stipulated in the acts. But, as this provision is made to apply to "each shareholder," the implication is very strong that the application was intended to reach every person capable of owning shares of stock in state banking corporations. The constitutional provision is clearly self-executing (Austin v. Campbell [Tex. Civ. App.] 210 S. W. 277), and it does not seem that any Legislature would have the power, in the face thereof, either by omission or by affirmative act, to exempt from its operation any class of persons capable of owning such shares, which, of course, includes married women. Whether this implication may be given effect to overcome the ancient, but still vigorous, rule of strict construction in favor of married women against all enactments affecting their personal liabilities, is a question perhaps unnecessary to decide in this cause. It does not seem to be necessary to look alone to the quoted provision to determine if married women are amenable to the liability therein provided for in general terms. We think that provision must be linked with the more specific provisions of article 1123, R. S.:

"The charter of an intended corporation must be subscribed by three or more persons; * * * provided, that all charters may be subscribed by married women who may also be stockholders, officers and directors thereof; and their acts, contracts and deeds as such stockholders, officers and directors shall be as binding and effective for all the purposes of said corporation as if they were males; and the joinder and consent of their husbands and privy examinations separate and apart from them shall not be required."

As will be seen, the act by express terms relates to all corporations, and we see no reason why it should not include state banking corporations. If it does, then certainly it settles the very question under consideration, and has the unmistakable effect of placing married women upon precisely the same footing as all other persons owning stock in state banks, both as to the power to own and control and vote such stock, and as to the duty to respond to the liability of such ownership. The Banking Act (Acts 1st Called Sess. 1905, c. 10) ought to be so considered as to uphold its integrity; whereas, to hold that under its terms married women may own stock in banks and enjoy all the profits and privileges and benefits of such ownership, and at the same time be exempt from the burdens and liabilities borne by all other stockholders, would go far towards destroying the wise purposes of the act. The precise question is new in this state, but in other jurisdictions, under statutes and conditions similar to those in this state, married women are held to be equally liable with all other shareholders, and we so hold here. 1 Cook on Corp. §§ 66, 250; 7 C. J. p. 770; Kerr v. Urie, 86 Md. 72, 37 A. 789, 38 L. R. A. 119, 63 Am. St. Rep. 493.

It is contended by appellant that Mrs. Pettus is estopped to deny her true ownership of the stock in question, or to assert, after the bank had failed, that she did not own the stock but simply held it in her name as trustee for her husband. Appellee contends, on the other hand, that those interested had actual or constructive notice of her coverture, and that being a married woman, she cannot be estopped by her acts except in case of her fraud, which is not alleged here. As has been shown, the stock was transferred on the books of the corporation from "T. W. Pettus" to "Mrs. T. W. Pettus," and stood thus for 10 years, and up to the time of the failure. There was nothing in the books to show the alleged relation...