Syllabus
by the Court.
The
statute of limitations does not run against the state in an
action to enforce the statutory liability of the shareholder
in an insolvent bank taken over by the State Bank
Commissioner, together with its assets, for the purpose of
realizing upon the same in the interest of the depositors of
said bank, and to reimburse the bank guaranty fund for the
sum paid out to said depositors or creditors.
The
presumption of liability on shares of stock in an insolvent
bank, arising from the presence of a person's name on the
stock register, is rebutted by evidence that a bona fide sale
of the stock had been made, and that the vendor had performed
every duty which the law imposed in order to secure the
transfer on the registry of the bank.
Upon a
reasonable construction of the statute imposing liability
upon shareholders for the debts of state banks, and for all
the objects intended to be accomplished by the provisions
imposing liability on shareholders for such debts, the
responsibility of the defendant ceased upon the surrender of
certain stock certificates to the cashier of the bank
properly in dorsed to the party to whom the shareholder had
sold his stock, with the request that such officer make a
transfer of the stock upon the books of the bank, and where
such cashier promised to comply with such request, and
afterwards informed the shareholder that said request had
been complied with, and such shareholder, who was at the time
a director of the bank, tendered his resignation as such, to
the officers of the bank, informed them that he had sold and
transferred his stock and that he could no longer act as a
director, and such shareholder's connection with the bank
thereafter ceased, although such transfer of stock was not
in fact, made upon the books of the bank.
Appeal
from District Court, Oklahoma County; John W. Hayson, Judge.
Action
by the State, on relation of the Attorney General, against J
E. Ware, to enforce statutory stockholder's liability.
Judgment for defendant, and plaintiff appeals. Affirmed.
JOHNSON
J.
This
action was commenced by the State of Oklahoma, on relation of
the Attorney General, as plaintiff, against J. E. Ware, as
defendant, to enforce the statutory liability of the
defendant as a shareholder in the Planters' & Mechanics' Bank, a defunct concern, the assets of which
were taken over by the Bank Commissioner of the state after
the bank became insolvent.
The
cause was tried to the court by stipulation of the parties
upon an agreed statement of facts, and a judgment was
rendered in favor of the defendant, to reverse which this
proceeding in error was regularly commenced by the plaintiff.
The stipulation upon which the cause was tried is as follows:
"Come now the parties hereto, the plaintiff, the state
of Oklahoma, by S. P. Freeling, Attorney General, and J. I.
Howard, his Assistant Attorney General, and the defendant, J.
E. Ware, by his attorneys, Everest & Campbell, and stipulate
and agree that said cause may be tried to the court without
the intervention of a jury, upon the following agreed
statement of facts, which facts are agreed by the parties to
be the material facts in said controversy, and all the facts
necessary to a correct determination thereof, and it is
agreed as follows:
(1) That on and prior to the 6th day of April, 1911, the
Planters' & Mechanics' Bank was a banking
corporation, duly organized, existing and doing business
under and by virtue of the banking laws of the state of
Oklahoma, with an authorized capital stock of $50,000 divided
into 500 shares of par value of $100 each, with its principal
place of business in Oklahoma City, Oklahoma county, state of
Oklahoma.
(2) That on the 6th day of April, 1911, the Bank Commissioner
of the state of Oklahoma, acting under and by virtue of the
laws of Oklahoma in such cases made and provided, took over
the Planters' & Mechanics' Bank of Oklahoma City,
Okl., for the reason that said bank was then in an insolvent
and failing condition, and was unable to meet the demands of
its creditors in the usual and customary manner, and, as such
Bank Commissioner, took possession of books, record, and
assets of the said bank for the purpose of winding up its
affairs, collecting the debts due it, and for the purpose of
converting its assets into cash and paying the claims of
unsecured depositors of said bank, and said Bank Commissioner
is proceeding under the laws to perform his duty thereunder.
(3) That the cash available in said bank and that which
thereafter becomes available out of the proceeds of the sale
of the assets of said bank and the collection of notes and
obligations due it, was and is insufficient to secure the
notes and obligations of the depositors of said bank, and the
plaintiff by and through the State Banking Board and the Bank
Commissioner thereof, was compelled to and did pay a large
sum of money out of the depositors' guaranty fund of the
state of Oklahoma, in addition to the cash immediately
available from the sale of the assets of said bank, and the
cash arising from the proceeds of the assets of said bank
since said time, and that said sum so paid by the plaintiff
exceeds the sum of $100,000, and by reason thereof the state
of Oklahoma, for the use and benefit of the Banking Board and
the Bank Commissioner thereof, as custodians and
administrators of the depositors' guaranty fund of the
state of Oklahoma, had title to and a first prior and
superior lien upon all of the assets of said bank, including
the additional liability against the stockholders, officers,
and directors thereof.
(4) It is further admitted that on the 11th day of December,
1909, the Planters' & Mechanics' Bank issued to the
defendant, J. E. Ware, certificate numbered 128 of said date,
for 5 shares of the capital stock of said bank, of the par
value or face value of $500.
(5) That on or about the first day of January, 1910, the
defendant, J. E. Ware, sold, assigned, and transferred the
said certificate numbered 128 for the said 5 shares of the
capital stock in the Planters' & Mechanics' Bank
aforesaid to one J. M. Postelle, who was then and there a
stockholder of the said Planters' & Mechanics' Bank,
and said certificate of stock was by the said J. E. Ware
assigned upon the back thereof in the blank provided for the
purpose, witnessed by the said Nicholas M. Ellis, cashier of
said bank, and delivered to the said Planters' & Mechanics' Bank and the officers thereof, and
particularly to the said Nicholas M. Ellis, cashier, whose
duty it was to make transfers of stock on the books of said
bank, and the said Ellis, acting for said bank, agreed to
transfer the same and afterwards told the defendant, J. E.
Ware, that said stock had been so transferred on the books of
said bank. That, at the date of said transfer and delivery of
said certificate, the said J. E. Ware received the sum of
$600 for said stock, being the book value thereof as shown by
the books of said bank. That, prior to the date of said
transfer and assignment of said certificate of stock, the
said J. E. Ware was a director of said bank, and immediately
upon the transfer notified the board of directors, and the
president, cashier, and other officers of said bank, that he
had sold said stock, and was no longer a shareholder in said
bank, and that he could no longer act as director therein,
and thereupon the said J. E. Ware, defendant, ceased to act
as such director, and never thereafter participated in the
said affairs of the said bank. That at the date of said
transfer,
to wit; about January 1, 1910, said Planters' & Mechanics' Bank was not insolvent, and was not taken
charge of by the Bank Commissioner of the state of Oklahoma
until the date heretofore stated, to wit April 6, 1911.
(6) It is further agreed that the said Nicholas M. Ellis and
the officers of said bank never actually canceled said
surrendered certificate of stock, No. 128, belonging to the
defendant aforesaid, and never reissued any stock in lieu
thereof, and that at the time of the insolvency
of said bank, to wit; April 6, 1911, the said bank showed
said certificate of stock in the name of the defendant J. E.
Ware.
(7) It is further agreed that the by-laws of the said bank
provide as follows: '(5) The secretary shall keep a
proper record and correct record of any stock issued or
canceled, showing the date of issue or cancellation,
certificate number, owner, address, number of shares and
amount. (6) The stock may be transferred or assigned only on
the books of the bank; must be surrendered, canceled, and new
stock issued instead, in accordance with the banking
laws.'
And it is further agreed that said by-laws were in force at
the time of the transfer and surrender for cancellation of
the certificate of stock above described, originally owned by
J. E. Ware. The questions to be decided by the court, as
under the agreed statement of facts above set out, are: (1)
Whether the said action is barred by the statute of
limitations, this action having been commenced on the 11th
day of July, 1916; and (2) whether, if not barred by the
statute of limitations, the defendant, J. E. Ware, is liable
in this action."
The two
propositions involved in this appeal are thus stated by the
Attorney General in his reply brief:
"Defendant in error discusses two propositions, the
first being the statute of limitations and the second
exoneration of defendant from liability as a stockholder,
because of his attempted transfer
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