"This suit was instituted by the appellee, in his official capacity as commissioner of insurance and banking of the state of Texas, to recover upon an assessment alleged to have been made against the appellant as a stockholder in the First State Bank of Bronte, Texas, which bank was alleged to have become insolvent and the management and control thereof assumed by the commissioner for the purpose of liquidating the affairs of said bank. The petition alleged that the insolvent bank was on January 11, 1922 (the date upon which the same was taken charge of by the commissioner), and at the time of the filing of the suit, insolvent and unable to pay its debts, and that its assets are insufficient to pay off and discharge its legal obligations. That for the purpose of liquidating the affairs of said bank, winding up its affairs and discharging its legal obligations, the commissioner, on January 23, 1922, made an assessment of an amount equal to the par value of the stock held by each of its stockholders, and that the appellant was then the owner of 24 shares of the capital stock of said insolvent bank, and that by reason thereof the defendant became liable to the plaintiff for the sum of $2,400, with interest thereon from January 23, 1922, for which he prayed judgment.
"The appellant answered by a plea in abatement by which it assailed the right of the commissioner to recover in the capacity in which he sued, for the reason that the plaintiff's predecessor in office had, prior to the institution of the suit, sold, assigned, and delivered to the Guaranty State Bank of Bronte, Texas, all of the property and assets of said First State Bank of every kind and character, including the liability of the stockholders of said bank and all funds to be realized on account thereof, and that the Guaranty State Bank, with the consent of the plaintiff and his predecessor in office, had sold and disposed of a portion of said assets, collected and appropriated a large portion of the accounts and bills receivable of said First State Bank, and that the plaintiff
and his predecessor in office had authorized and permitted said Guaranty State Bank to continue in the possession and control of the assets of said First State Bank and to dispose of the same and to collect, receive, and appropriate the bills receivable belonging to said bank at the time the same was taken charge of by the commissioner, and thereby abandoned the trust by virtue of which the assessment sued on was made, and rendered it impossible for the commissioner to discharge the duties of liquidating the affairs of said bank, discharging its debts and obligations to its creditors and stockholders, or to apply the assessment sued for to the discharge of the debts and liabilities of said bank.
"Answering further, the appellant alleged that the plaintiff ought not to have or maintain the suit or to recover upon the cause of action sued on, because prior to the institution of the suit the plaintiff and his predecessor in the office of commissioner of insurance and banking had sold, assigned and conveyed to the Guaranty State Bank the claim and cause of action sued on, and the plaintiff was not the owner of said cause of action and did not own, claim, or hold the same at the time of the institution of this suit or at any time subsequent thereto.
"It was further alleged in the answer that if the plaintiff ever had any right to recover on the cause of action sued on, such right resulted from the alleged insolvency of the First State Bank of Bronte, Texas, and the alleged action of the commissioner of insurance and banking in taking charge of its property and assets for the purpose of liquidating the same and making an assessment against the stockholders of said bank for the purpose of enabling said commissioner to liquidate and wind up the affairs of said bank and discharge its obligations to its creditors and stockholders. That it was the duty of the commissioner under the law by virtue of which he was authorized to make or collect said assessment upon the stockholders of said bank, to collect the bills receivable due said First State Bank and dispose of all of the property and assets thereof in such manner as to realize thereon the value thereof and apply the proceeds to the payment of the debts of said bank, and in the administration of such trust it was the duty of said commissioner, after the payment of its debts, to distribute to and among its stockholders all of the remainder of the proceeds of the sale of its assets and the collection of its accounts and bills receivable and the assessment against its stockholders. That immediately after taking charge of said bank and the assets thereof, and immediately after making the assessment against its stockholders, the plaintiff's predecessor in office abandoned the trust assumed by him in taking charge of said bank, and failed and refused to carry out the same, and rendered it impossible for him, or the plaintiff as his successor, to so discharge said trust, in that the plaintiff's predecessor sold, transferred, and delivered to the Guaranty State Bank all of the property and assets of said insolvent bank, including the liability of its stockholders under the assessment sued on, and authorized and permitted said Guaranty State Bank to convert and appropriate to its own use and sell and dispose of the property and assets of said bank, and collect, compromise, discharge and appropriate all of the outstanding claims, accounts, and bills receivable due said insolvent bank, without any control over the same or the disposition or application thereof by said commissioner, and that the plaintiff has recognized, acquiesced in, and consented to such action of his predecessor in office, by reason of all of which plaintiff never acquired any right to enforce the collection of said assessment, and was estopped and precluded from the recovery of any judgment against the appellant herein.
"The appellee by way of supplemental petition alleged that after the levy of the assessment against the stockholders of the insolvent bank the commissioner entered into negotiations with the Guaranty State Bank for the sale and purchase of the assets and property of said insolvent bank, which negotiations consisted partly of a contract and agreement between the commissioner and the Guaranty State Bank which was not reduced to writing, and partly of a written contract dated January 28, 1922. That the agreement of the commissioner which was not set out in the written contract was that the commissioner agreed, in consideration of the Guaranty State Bank performing the contract on its part reduced to writing, to assume, pay off, liquidate, and satisfy all lawful debts, liabilities, and claims of all creditors of the First State Bank, except any liability of the stockholders thereof, that the commissioner would sell and convey to the Guaranty State Bank all of the assets of the First State Bank of every kind and character, known and unknown, and all liability of the stockholders of said bank and all funds which might have theretofore or might thereafter be received or realized on account thereof, and that in addition thereto it was agreed by the commissioner that he would obtain the services of the Attorney General's department and would institute and prosecute in his name as such commissioner all suits necessary to recover said assessment against the stockholders and pay over the same to the Guaranty State Bank, and would take all necessary legal steps to enforce the liability of all of the stockholders of said insolvent bank for the use and benefit of the Guaranty State Bank, and that in pursuance thereof and at the request of said Guaranty State Bank this suit was instituted by the commissioner and was being prosecuted for the use and benefit of said Guaranty State Bank and at its request. That in order to carry out the contract and agreement as above alleged, the commissioner of insurance and banking, joined by the liquidating agent of said First State Bank, applied to the district court of Coke county, the county in which said First State Bank was located, in vacation, for authority to consummate said sale in accordance with said contract. That after considering said application the court entered its order, in vacation, setting said cause for hearing and requiring notice thereof to be given said insolvent bank, and thereafter said bank appeared and waived service of notice and entered its appearance; and thereafter, on January 28, 1922, said court considered said application for an order authorizing said sale in accordance with said contract and granted the same, and said commissioner was directed to deliver all of said assets to said Guaranty State Bank and to carry into effect all
the provisions of said contract, and deliver proper instruments of conveyance together with said property and assets in accordance therewith. That under the law the commissioner of insurance and banking was the only person authorized to institute and prosecute suits against stockholders of insolvent and defunct banks to recover assessments made against them, and it became the duty of the commissioner to institute and prosecute this suit, `and this suit is instituted by plainti...
