Roe v. King

• Decision Date: 21 November 1933
• Docket Number: No. 42170.,42170.
• Parties: ROE v. KING.
• Court: Iowa Supreme Court

217 Iowa 213

251 N.W. 81

ROE

v.KING.

No. 42170.

Supreme Court of Iowa.

Nov. 21, 1933.

Appeal from District Court, Hamilton County; T. G. Garfield, Judge.

This is an action by the plaintiff-appellant to establish a judgment lien on certain real estate owned by the defendant-appellee, and claimed by her to be a homestead. The relief was denied, and the plaintiff appeals.

Affirmed.

Helsell, McCall & Dolliver, of Fort Dodge, and R. G. Remley, of Webster City, for appellant.

Burnstedt & Hemingway, of Webster City, for appellee.

KINDIG, Justice.

While the defendant-appellee, Kate M. King, was the owner of forty-five shares of stock in the State Bank of Blairsburg, that institution became insolvent and closed its doors. On June 5, 1928, L. A. Andrew, the superintendent of banking, was duly appointed receiver of the bank, as required by law, L. A. Andrew, as such receiver, on November 19, 1929, obtained an order of court assessing the stockholders of the bank, including the appellee, 100 per cent. As a part of the assessment, and when the same was made, the district court entered judgment thereon against the appellee in favor of the superintendent of banking in the sum of $4,500. This judgment was entered in favor of the superintendent of banking as receiver of the aforesaid bank.

The superintendent of banking, as receiver, thereafter, on February 11, 1931, made application to the district court to sell the assets of the bank, including the aforesaid judgment. Accordingly, on February 17, 1931, the district court authorized the sale. Then, on March 5, 1931, in accordance with the previous order, the state superintendent of banking, as receiver, sold the remaining assets of the bank to the plaintiff-appellant, C. L. Roe. When thus purchasing the remaining assets of the bank, the appellant paid therefor $2,750; while the face value of the assets thus purchased amounted to more than $30,000.

Thereafter, and as a part of the sale, the superintendent of banking, as receiver of the bank, assigned to the appellant the stock assessment judgment against the appellee. Whereupon the appellant caused execution to issue on the judgment and levied on certain properties belonging to the appellee. Approximately $400 was realized by the appellant on this execution. Following the collection of the $400 by execution sale, the appellant, on February 24, 1932, commenced the present suit in equity to establish the balance due on the assigned judgment as a lien on certain real estate of the appellee claimed by her as a homestead.

In her answer to the petition in the equity suit, the appellee, among other things, pleaded: First, that the property in question is a homestead, and therefore not subject to the judgment; and, second, that in no event is the judgment enforceable in the hands of the appellant. The appellee's theory at this juncture is that the judgment on the stock assessment was for the benefit of the creditors of the bank only, and could only be enforced by the superintendent of banking, as receiver. Because the district court accepted the theory of the appellee, the appellant appeals.

I. On the one hand it is claimed by the appellant that the debt was incurred before the homestead character became fixed upon the real estate; while on the other hand, it is asserted by the appellee that she acquired the homestead before the debt was incurred. We find it unnecessary to discuss the conflicting claims of the parties concerning the liability of the homestead for the judgment. Our discussion, therefore, is limited to the enforcibility of the judgment for the stock assessment when assigned to the appellant.

[1][2][3][4] Sections 9251 to 9254, both inclusive, of the 1931 Code provide for the liability of stockholders in insolvent banks and for the distribution of the proceeds received from assessments therefor. It is provided in section 9254 of the 1931 Code that the stock assessment now under consideration “* * * shall be distributed equally among all the creditors of such corporation in proportion to the several sums due them.” Andrew, Supt. of Banking, v. State Bank of Swea City, 214 Iowa, 1339, 242 N. W. 62, 65, 82 A. L. R. 1280.

“Such liability can only be enforced for the purpose of payment to creditors.” Andrew, Supt., v. State Bank of Swea City, supra. In Andrew, Supt., v. State Bank of Swea City (214 Iowa, 1339), supra, reading on page 1347, 242 N. W. 62, 65, 82 A. L. R. 1280, we said: “The statutory liability created by section 9251 of the Code is not an ‘asset’ of the bank and cannot be sold as such under an order for the ‘sale of assets.’ * * * The enforcement of trust fund obligations of this character should be by the receiver. If, in his judgment, such a claim is questionable as to collectibility, it should be compromised, as by law provided, but it cannot become the basis of private speculation or oppression.”

Thus it was definitely held in the Swea City Bank Case that a claim based on the liability of a stockholder for a bank stock assessment is for the benefit of the creditors of the bank only and can be enforced by the receiver alone or one making the collection for the benefit of such creditors. This is true, as held in the Swea City Bank Case, although the district court may have approved the sale and assignment of such claim. Because the Swea City Bank Case has decided that an assignee of such claim cannot enforce the same, it is not necessary to here repeat the discussion. A reference to the Swea City Bank Case (214 Iowa, 1339, 242 N. W. 62, 82 A. L. R. 1280), supra, is sufficient.

But it is argued by the appellant that a different situation is involved in the present controversy. The difference arises, the appellant declares because the claim for the stock assessment was first placed in judgment, and thereafter assigned. To put the thought differently, the appellant says that he purchased a judgment, as distinguished from a mere claim for a stock assessment. Continuing his argument at this point, the appellant maintains that a judgment cannot be collaterally attacked. In the case at bar, as in the Swea City Bank Case (214 Iowa, 1339, 242 N. W. 62, 82 A. L. R. 1280), supra, the district court approved the assignment, but in the Swea City Bank Case it was held that the court's approval of the assignment did not change the rights of the assignee in the claim assigned. So in the case at bar the authorization by the district court did not increase the rights of the appellant in the judgment. When receiving the judgment by assignment, the appellant took only that which the superintendent of banking, as receiver, could assign. Generally speaking, an assignee takes no greater or higher right than that of the assignor. Boyce v. Farmers' Mutual Insurance Association, 209 Iowa, 11, 227 N. W. 523.

What has just been said in relation to the general assignment, applies to the transfer of an ordinary judgment. Schultz v. Sylvester, 184 Iowa, 859, 169 N. W. 179; ...