The receiver of a national bank cannot recover a dividend paid
to a stockholder not at all out of profits, but entirely out of
capital, when the stockholder receiving such dividend acted in good
faith, believing the same to be paid out of profits, and when the
bank at the time such dividend was declared and paid, was not
insolvent.
This suit was commenced in the Circuit Court of the United
States for the Southern District of New York. It was brought by the
plaintiff, as receiver of the Capital National Bank of Lincoln,
Nebraska, for the purpose of recovering from the defendants, who
were stockholders in the bank, the amount of certain dividends
received by them before the appointment of a receiver.
Upon the trial of the case, the circuit court decreed in favor
of the plaintiff for the recovery of a certain amount. The
defendants appealed from the decree because it was not in their
favor, and the plaintiff appealed from it because the recovery
provided for in the decree was not as much as he claimed to be
entitled to. Upon the argument of the appeal in the circuit court
of appeals, certain questions of law were presented as to which
that court desired the instruction of this Court for their proper
decision.
It appears from the statement of facts made by the court that
the bank suspended payment in January, 1893, in a condition of
hopeless insolvency, the stockholders, including the
Page 174 U. S. 398
defendants, having been assessed to the full amount of their
respective holdings, but the money thus obtained, added to the
amount realized from the assets, will not be sufficient, even if
all dividends paid during the bank's existence were repaid to the
receiver, to pay seventy-five percent of the claims of the bank's
creditors.
This suit was brought to compel the repayment of certain
dividends paid by the bank to the defendants on that part of the
capital of the bank represented by their stock of the par value of
$5,000, on the ground, alleged in the bill, that each of said
dividends was fraudulently declared and paid out of the capital of
the bank, and not out of net profits.
A list of the dividends, and the amount thereof, paid by the
bank from January, 1885, to July, 1892, both inclusive, is
contained in the statement, and it is added that all dividends,
except the last (July 12, 1892), were paid to the defendant
Williams, a stockholder to the amount of $5,000, from the
organization of the bank. The last dividend was paid to the
defendant Dodd, who bought Williams' stock and had the same
transferred to his own name December 16, 1891.
When the dividend of January 6, 1889, was declared and paid, and
when each subsequent dividend, down to and including July, 1891,
was declared and paid, there were no net profits. The capital of
the bank was impaired, and the dividends were paid out of the
capital, but the bank was still solvent. When the dividends of
January and July, 1892, were declared and paid, there were no net
profits, the capital of the bank was lost, and the bank actually
insolvent.
The defendants, neither of whom was an officer or director, were
ignorant of the financial condition of the bank, and received the
dividends in good faith, relying on the officers of the bank and
believing the dividends were coming out of the profits.
Upon these facts, the court desired the instruction of this
Court for the proper decision of the following questions:
First question: can the receiver of a national bank recover a
dividend paid not at all out of profits, but entirely out of the
capital, when the stockholder receiving such dividend acted in good
faith, believing the same to be paid out of
Page 174 U. S. 399
profits, and when the bank, at the time such dividend was
declared and paid, was not insolvent?
Second question: has a United States circuit court jurisdiction
to entertain a bill in equity brought by a receiver of a national
bank against stockholders to recover dividends which, as claimed,
were improperly paid when such suit is brought against two or more
stockholders and embraces two or more dividends and when the
objection that there is an adequate remedy at law is raised by the
answer?
MR. JUSTICE PECKHAM, after stating the facts, delivered the
opinion of the Court.
It will be noticed that the first question is based upon the
facts that the bank, at the time the dividends were declared and
paid, was solvent, and that the stockholders receiving the
dividends acted in good faith, and believed that the same were paid
out of the profits made by the bank.
The sections of the Revised Statutes which are applicable to the
questions involved herein are set forth in the margin.
*
Page 174 U. S. 400
The complainant bases his right to recover in this suit upon the
theory that the capital of the corporation was a trust fund for the
payment of creditors entitled to a portion
Page 174 U. S. 401
thereof, and, having been paid in the way of dividends to the
shareholders, that portion can be recovered back in an action of
this kind for the purpose of paying the debts of the corporation.
He also bases his right to recover upon the terms of section 5204
of the Revised Statutes.
We think the theory of a trust fund has no application to a case
of this kind. When a corporation is solvent, the theory that its
capital is a trust fund upon which there is any lien for the
payment of its debts has in fact very little foundation. No general
creditor has any lien upon the fund under such circumstances, and
the right of the corporation to deal with its property is absolute
so long as it does not violate its charter or the law applicable to
such corporation.
In
Graham v. Railroad Company, 102 U.
S. 148,
102 U. S. 161, it
was said by Mr. Justice Bradley in the course of his opinion
that:
"When a corporation becomes insolvent, it is so far civilly dead
that its property may be administered as a trust fund for the
benefit of its stockholders and creditors. And a court of equity,
at the instance of the proper parties, will
Page 174 U. S. 402
then make those funds trust funds which in other circumstances
are as much the absolute property of the corporation as any man's
property is his."
And in
Hollins v. Brierfield Coal & Iron Company,
150 U. S. 371,
150 U. S. 383,
it was stated by MR. JUSTICE BREWER, in delivering the opinion of
the Court, and speaking of the theory of the capital of a
corporation being a trust fund, as follows:
"In other words -- and that is the idea which underlies all
these expressions in reference to 'trust' in connection with the
property of a corporation -- the corporation is an entity, distinct
from its stockholders as from its creditors. Solvent, it holds its
property as any individual holds his -- free from the touch of a
creditor who has acquired no lien; free also from the touch of a
stockholder who, though equitably interested in, has no legal right
to, the property. Becoming insolvent, the equitable interest of the
stockholders in the property, together with their conditional
liability to the creditors, places the property in a condition of a
trust, first for the creditors and then for the stockholders.
Whatever of trust there is arises from the peculiar and diverse
equitable rights of the stockholders as against the corporation, in
its property and their conditional liability to its creditors. It
is rather a trust in the administration of the assets after
possession by a court of equity than a trust attaching to the
property as such for the direct benefit of either creditor or
stockholder."
And also:
"The officers of a corporation act in a fiduciary capacity in
respect to its property in their hands, and may be called to an
account for fraud, or sometimes even mere mismanagement in respect
thereto; but, as between itself and its creditors, the corporation
is simply a debtor, and does not hold its property in trust, or
subject to a line in heir favor, in any other sense than does an
individual debtor. That is certainly the general rule, and if there
by any exceptions thereto, they are not presented by any of the
facts in this case. Neither the insolvency of the corporation, nor
the execution of an illegal trust deed, nor the failure to collect
in full all stock
Page 174 U. S. 403
subscriptions, nor all together gave to these simple contract
creditors any lien upon the property of the corporation nor charged
any direct trust thereon."
Other cases are cited in the opinion as holding the same
doctrine.
In
Wabash &c. Railway Company v. Ham, 114 U.
S. 587,
114 U. S. 594,
MR. JUSTICE GRAY, in delivering the opinion of the Court, said:
"The property of a corporation is doubtless a trust fund for the
payment of its debts in the sense that when the corporation is
lawfully dissolved and all its business wound up, or when it is
insolvent, all its creditors are entitled in equity to have their
debts paid out of the corporate property before any distribution
thereof among the stockholders. It is also true, in the case of a
corporation as in that of a natural person, that any conveyance of
property of the debtor without authority of law and in fraud of
existing creditors is void as against them."
These cases, while not involving precisely the same question now
before us, show there is no well defined lien of creditors upon the
capital of a corporation while the latter is a solvent and going
concern, so as to permit creditors to question at the time the
disposition of the property.
The bank, being solvent, although it paid its dividends out of
capital, did not pay them out of a trust fund. Upon the subsequent
insolvency of the bank and the appointment of a receiver, an action
could not be brought by the latter to recover the dividends thus
paid on the theory that they were paid from a trust fund, and
therefore were liable to be recovered back.
It is contended on the part of the complainant, however, that if
the assets of the bank are impressed with a trust in favor of its
creditors when it is insolvent, they must be impressed with the
same trust when it is solvent; that the mere fact that the value of
the assets of the corporation has sunk below the amount of its
debts, although as yet unknown to anybody, cannot possibly make a
new contract between the corporation and its creditors. In case of
insolvency, however,
Page 174 U. S. 404
the recovery of the money paid in the ordinary way without
condition is allowed not on the ground of contract to repay, but
because the money thus paid was in equity the money of the
creditor; that it did not belong to the bank, and the bank, in
paying, could bestow no title in the money it paid to one who did
not receive it
bona fide and for value. The assets of the
bank while it is solvent may clearly not be impressed with a trust
in favor of creditors, and yet that trust may be created by the
very fact of the insolvency, and the trust enforced by a receiver
as the representative of all the creditors. But we do not wish to
be understood as deciding that the doctrine of a trust found does,
in truth, extend to a shareholder receiving a dividend, in good
faith believing it is paid out of profits, even though the bank at
the time of the payment be in fact insolvent. That question is not
herein presented to us, and we express no opinion in regard to it.
We only say that if such a dividend be recoverable, it would be on
the principle of a trust fund.
Insolvency is a most important and material fact not only with
individuals, but with corporations, and with the latter as with the
former, the mere fact of its existence may change radically and
materially its rights and obligations. Where there is no statute
providing what particular act shall be evidence of insolvency or
bankruptcy, it may be and it sometimes is quite difficult to
determine the fact of its existence at any particular period of
time. Although no trust exists while the corporation is solvent,
the fact which creates the trust is the insolvency, and when that
fact is established, at that instant the trust arises. To prove the
instant of creation may be almost impossible, and yet its existence
at some time may very easily be proved. What the precise nature and
extent of the trust is even in such case may be somewhat difficult
to accurately define, but it may be admitted in some form and to
some extent to exist in a case of insolvency.
Hence it must be admitted that the law does create a distinction
between solvency and insolvency, and that from the moment when the
latter condition is established, the legality of acts thereafter
performed will be decided by very different
Page 174 U. S. 405
principles than in a case of solvency. And so of acts committed
in contemplation of insolvency. The fact of insolvency must be
proved in order to show the act was one committed in contemplation
thereof.
Without reference to the statute, therefore, we think the right
to recover the dividend paid which the bank was solvent would not
exist.
But it is urged on the part of the complainant that section 5204
of the Revised Statutes makes the payment of a dividend out of
capital illegal and
ultra vires of the corporation, and
that money thus paid remains the property of the corporation, and
can be followed into the hands of any volunteer.
The section provides that
"no association or any member thereof shall, during the time it
shall continue its banking operations, withdraw or permit to be
withdrawn, either in the form of dividends or otherwise, any
portion of its capital."
What is meant by this language? Has a shareholder withdrawn or
permitted to be withdrawn, in the form of a dividend, any portion
of the capital of the bank when he has simply and in good faith
received a dividend declared by a board of directors of which he
was not a member, and which dividend he honestly supposed was
declared only out of profits? Does he in such case, within the
meaning of the statute, withdraw or permit to be withdrawn a
portion of the capital? The law prohibits the making of a dividend
by a national bank from its capital, or to an amount greater than
its net profits then on hand, deducting therefrom its losses and
bad debts. The fact of the declaration of a dividend is in effect
the assertion by the board of directors that the dividend is made
out of profits. Believing that the dividend is thus made, the
shareholder in good faith receives his portion of it. Can it be
said that in thus doing, he withdraws or permits to be withdrawn
any portion of the capital of the corporation? We think he does not
withdraw it by the mere reception of his proportionate part of the
dividend. The withdrawal was initiated by the declaration of the
dividend by the board of directors, and was consummated on their
part when they permitted payment to be made in accordance with the
declaration. We think this language
Page 174 U. S. 406
implies some positive or affirmative act on the part of the
shareholder by which he knowingly withdraws the capital or some
portion thereof, or with knowledge permits some act which results
in the withdrawal, and which might not have been so withdrawn
without his action. The permitting to be withdrawn cannot be
founded upon the simple receipt of a dividend under the facts
stated above.
One is not usually said to permit an act which he is wholly
ignorant of, nor would he be said to consent to an act of the
commission of which he had no knowledge. Ought it to be said that
he withdraws or permits the withdrawal by ignorantly, yet in entire
good faith, receiving his proportionate part of the dividend? Is
each shareholder an absolute insurer that dividends are paid out of
profits? Must he employ experts to examine the books of the bank
previous to receiving each dividend? Few shareholders could make
such examination themselves. The shareholder takes the fact that a
dividend has been declared as an assurance that it was declared out
of profits, and not out of capital, because he knows that the
statute prohibits any declaration of a dividend out of capital.
Knowing that a dividend from capital would be illegal, he would
receive the dividend as an assurance that the bank was in a
prosperous condition and with unimpaired capital. Under such
circumstances, we cannot think that Congress intended, by the use
of the expression "withdraw or permit to be withdrawn, either in
the form of dividends, or otherwise," any portion of its capital to
include the case of the passive receipt of a dividend by a
shareholder in the
bona fide belief that the dividend was
paid out of profits while the bank was in fact solvent. We think it
would be an improper construction of the language of the statute to
hold that it covers such a case.
We are strengthened in our views as to the proper construction
of this act by reference to some of its other sections. The payment
of the capital within a certain time is provided for by sections
5140 and 5141. Section 5151 provides for the individual
responsibility of each shareholder to the extent of his stock at
the par value thereof, in addition to the amount invested therein.
(These shareholders have already been assessed under
Page 174 U. S. 407
this section.) And section 5205 provides for the case of a
corporation whose capital shall have become impaired by losses or
otherwise, and proceedings may be taken by the association against
the shareholders for the payment of the deficiency in the capital
within three months after receiving notice thereof from the
comptroller. These various provisions of the statute impose a very
severe liability upon the part of holders of national bank stock,
and, while such provisions are evidently imposed for the purpose of
securing reasonable safety to those who deal with the banks, we may
nevertheless say, in view of this whole system of liability, that
it is unnecessary, and that it would be an unnatural construction
of the language of section 5204 to hold that, in a case such as
this, a shareholder, by the receipt of a dividend from a solvent
bank, had withdrawn, or permitted to be withdrawn, any portion of
its capital.
We may concede that the directors who declared the dividend
under such circumstances violated the law and that their act was
therefore illegal, but the reception of the dividend by the
shareholder in good faith, as mentioned in the question, was not a
wrongful or designedly improper act. Hence the liability of the
shareholder should not be enlarged by reason of the conduct of the
directors. The may have rendered themselves liable to prosecution,
but the liability of the shareholder is different in such a case,
and the receipt of a dividend under the circumstances is different
from an act which may be said to be generally illegal, such as the
purchase of stock in one national bank by another national bank for
an investment merely, which is never proper.
First National
Bank v. Hawkins, just decided,
ante, 174 U. S. 364.
The declaration and payment of a dividend is part of the course
of business of these corporations. It is the thing for which they
are established, and its payment is looked for as the appropriate
result of the business which has been done. The presumption of
legality attaches to its declaration and payment because declaring
it is to assert that it is payable out of the profits. As the
statute has provided a remedy under section 5205 for the impairment
of the capital which includes the case of an impairment produced by
the payment of a dividend,
Page 174 U. S. 408
we think the payment and receipt of a dividend, under the
circumstances detailed in the question certified, do not permit of
its recovery back by a receiver appointed upon the subsequent
insolvency of the bank.
The facts in the various English cases cited by counsel for
complainant are so entirely unlike those which exist in this case
that no useful purpose would be subserved by a reference to them.
Not one holds that a dividend declared under such facts as this
case assumes can be recovered back in such an action as this.
We answer the first question in the negative. The second
question relates to the jurisdiction of a court of equity over an
action of this nature. It is evident that the question was
propounded to meet the case of an affirmative answer to the first
question.
In that event, the second would require an answer. As we answer
the first question in the negative and the second question was
scarcely touched upon in the argument, we think it unnecessary to
answer it in order to enable the court below to proceed to judgment
in the case.
The first question will be certified in the
negative.
*
"SEC. 5199. The directors of any association may semi-annually
declare a dividend of so much of the net profits of the association
as they shall judge expedient, but each association shall, before
the declaration of a dividend, carry one-tenth part of its net
profits of the preceding half year to its surplus fund until the
same shall amount to twenty percentum of its capital stock."
"SEC. 5204. No association, or any member thereof, shall, during
the time it shall continue its banking operations, withdraw or
permit to be withdrawn either in the form of dividends or otherwise
any portion of its capital. If losses have at any time been
sustained by any such association equal to or exceeding its
undivided profits then on hand, no dividend shall be made, and no
dividend shall ever be made by any association, while it continues
its banking operations, to an amount greater than its net profits
then on hand, deducting therefrom its losses and bad debts. All
debts due to any associations on which interest is past due and
unpaid for a period of six months, unless the same are well secured
and in process of collection, shall be considered bad debts within
the meaning of this section. But nothing in this section shall
prevent the reduction of the capital stock of the association under
section fifty-one hundred and forty-three."
"SEC. 5205 [as amended by section 4 of the Act approved June 30,
1876, 19 St. 63]. Every association which shall have failed to pay
up its capital stock as required by law, and every association
whose capital stock shall have become impaired by losses or
otherwise, shall, within three months after receiving notice
thereof from the Comptroller of the Currency, pay the deficiency in
the capital stock, by assessment upon the shareholders
pro
rata for the amount of capital stock held by each, and the
Treasurer of the United States shall withhold the interest upon all
bonds held by him in trust for any such association upon
notification from the Comptroller of the Currency until otherwise
notified by him. If any such association shall fail to pay up its
capital stock, and shall refuse to go into liquidation, as provided
by law, for three months after receiving notice from the
Comptroller, a receiver may be appointed to close up the business
of the association, according to the provisions of section
fifty-two hundred and thirty-four;
and provided that if
any shareholder or shareholders of such bank shall neglect or
refuse, after three months' notice, to pay the assessment as
provided in this section, it shall be the duty of the board of
directors to cause a sufficient amount of the capital stock of such
shareholder or shareholders to be sold at public auction (after
thirty days' notice shall be given by posting such notice of sale
in the office of the bank, and by publishing such notice in a
newspaper of the city or town in which the bank is located or in a
newspaper published nearest thereto) to make good the deficiency,
and the balance, if any, shall be returned to such delinquent
shareholder or shareholders."
"SEC. 5140. At least fifty percentum of the capital stock of
every association shall be paid in before it shall be authorized to
commence business, and the remainder of the capital stock of such
association shall be paid in installments of at least ten percentum
each, on the whole amount of the capital, as frequently as one
installment at the end of each succeeding month from the time it
shall be authorized by the Comptroller of the Currency to commence
business, and the payment of each installment shall be certified to
the Comptroller, under oath, by the president or cashier of the
association."
"SEC. 5141. Whenever any shareholder or his assignee fails to
pay any installment on the stock when the same is required by the
preceding section to be paid, the directors of such association may
sell the stock of such delinquent shareholder at public auction,
having given three weeks' previous notice thereof in a newspaper
published and of general circulation in the city or county where
the association is located, or if no newspaper is published in said
city or county, then in a newspaper published nearest thereto, to
any person who will pay the highest price therefor, to be not less
than the amount due thereon, with the expenses of advertisement and
sale, and the excess, if any, shall be paid to the delinquent
shareholder. If no bidder can be found who will pay for such stock
the amount due thereon to the association and the cost of
advertisement and sale, the amount previously paid shall be
forfeited to the association, and such stock shall be sold as the
directors may order within six months from the time of such
forfeiture, and if not sold it shall be cancelled and deducted from
the capital stock of the association. If any such cancellation and
reduction shall reduce the capital of the association below the
minimum of capital required by law, the capital stock shall, within
thirty days from the date of such cancellation, be increased to the
required amount, in default of which a receiver may be appointed,
according to the provisions of section fifty-two hundred and
thirty-four, to close up the business of the association."
"SEC. 5151. The shareholders of every national banking
association shall be held individually responsible, equally and
ratably, and not one for another, for all contracts, debts and
engagements of such association, to the extent of the amount of
their stock therein at the par value thereof, in addition to the
amount vested in such shares. [The balance of this section is
immaterial.]"