Although in a limited sense there is an element of contract in
becoming a shareholder of a national bank, the liability for debts
of the institution is not contractual, but is based on the
provisions to that effect in the national banking law. The
government creating the bank has prescribed the terms upon which
ownership of its shares can be acquired, and only those are
exempted from liability who are specially described in the statute;
nor can any shareholders be exempted from such liability by a state
statute.
Under § 5151, Rev.Stat., a married woman residing in Florida,
who has inherited stock in a national bank which has been
transferred to her and on which she has received and accepted
dividends, is subject to a personal judgment for an assessment of
the comptroller, notwithstanding that, under the laws of Florida a
married woman cannot enter into a contract.
Nothing in the law of Florida incapacitates a married woman in
that state from becoming the owner, by bequest or otherwise, of
stock in a national bank. How and from what property such a
judgment shall be satisfied not involved or decided in this
action.
The facts, which involve the right of a receiver of a national
bank in Florida to enforce the statutory liability under § 5151,
Rev.Stat., against a married woman, a resident of that state and
owner of record of shares of stock of the bank, are stated in the
opinion.
Page 201 U. S. 221
MR. JUSTICE HARLAN delivered the opinion of the Court.
By the Revised Statutes of the United States, it is provided
that 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 invested in such
shares; that persons holding stock as executors, administrators,
guardians, or trustees shall not be personally subject to any
liabilities as stockholders, the estates and funds in their hands
being liable in like manner and to the same extent as the testator,
intestate, ward, or person interested in such trust funds would be
if living and competent to act and hold the stock in his own name,
and that a receiver of a national bank may, if necessary, to pay
the debts of such association, enforce the individual liability of
the stockholders. Rev.Stat. §§ 5151, 5152, 5234.
Proceeding under these statutes, the receiver of the First
National Bank of Florida brought this action against Henrietta S.
Christopher (her husband, John G. Christopher, being joined as
codefendant) to recover the amount due from her as a shareholder of
that bank under an assessment made by the Comptroller of the
Currency against the stockholders of that bank in order to pay its
debts.
The case made by the record is this: at the time of the
failure
Page 201 U. S. 222
of the bank, on March 14th, 1903, fifteen shares of its stock
stood in the name of Mrs. Christopher. The stock was bequeathed to
her by her father in 1886, and his executors caused it to be
transferred to her name on the books of the bank. This was done
without any request from or direction by her. Although not aware of
such transfer until the stock had been issued and delivered to her
in November, 1887, since that date she has held the certificate for
the fifteen shares. It is shown that, in 1894, she joined with
other shareholders in securing an amendment of the bank's articles
of association which extended the corporate existence of the bank
until the close of business on May 26, 1914. It further appears
that she received several semiannual dividends, from three to five
percent, on her stock from November, 1887, up to and including
February 1, 1896 at which time the last dividend on the capital
stock of the bank was declared and paid to stockholders. The
dividends were paid by checks made payable to her order and
personally indorsed by her. After the transfer of the stock, Mrs.
Christopher's name appeared on the registry of shareholders as the
owner of the fifteen shares of stock, and the books kept by the
bank showed the amount of dividends paid to her from time to time
on those shares.
A personal judgment was rendered in the circuit court against
Mrs. Christopher for the amount due on the assessment made by the
Comptroller. The judgment was affirmed by the circuit court of
appeals, which held that nothing in the law of Florida disabled
married women from owning, in their own right, stock in national
banking associations, and from incurring the liabilities resulting
therefrom. 134 F. 842.
That the Comptroller had authority to make the assessment
against stockholders, and that such assessment is conclusive as to
the amount to be collected, cannot be questioned.
Kennedy v.
Gibson, 8 Wall. 498;
Casey v. Galli,
94 U. S. 681;
Keyser v. Hitz, 133 U. S. 138;
Bushnell v. Leland, 164 U. S. 684,
164 U. S.
685.
Page 201 U. S. 223
Did the coverture of Mrs. Christopher at the time her name was
placed on the books of the bank as a shareholder, as well as when
she received the certificate of stock, protect her against a
personal judgment at law for the amount due under the
assessment made by the Comptroller of the Currency? That is the
controlling question in the case.
This question is, we think, substantially answered by the
judgment of this Court in
Keyser v. Hitz, 133 U.
S. 138,
133 U. S.
150-152. That was an action at law against Mrs. Hitz, a
married woman, who owned shares of stock in a savings bank which
was converted into a national bank. The action against her was
based on an assessment made by the Comptroller of the Currency. One
of the contentions in the case was that the coverture of the
defendant at the time she acquired the stock, as well as when the
bank failed, protected her against an assessment under the act of
Congress. The transaction occurred in the District of Columbia,
where the bank was located. It was not contended that the defendant
was incapacitated by the laws of the District from becoming the
owner of bank stock, and hence the court did not consider what
would have been the result if the local statutes had prohibited
married women from becoming the owners of bank stock. Upon that
basis, the court said:
"Assuming, then, that she was not incapacitated from becoming
the owner of stock in a bank, and that she was a shareholder in the
savings bank, she became, upon the conversion of that bank into a
national bank, a shareholder in the latter. Rev.Stat. § 5154. In
that event, she became,
by force of the statute,
individually responsible to the amount of her stock at the par
value thereof, for the contracts, debts, and engagements of the
national bank, equally and ratably with other shareholders. Section
5151, which imposes such individual responsibility upon the
shareholders of national banks, makes no exception in favor of
married women. The only persons holding shares of national bank
stock, whom the statute exempts from this personal responsibility,
are executors, administrators, guardians, or trustees. Section
5152. It is not for
Page 201 U. S. 224
the courts, by mere construction, to recognize an exemption
which Congress has not given."
Again:
"We are of opinion that the coverture of the defendant did not
prevent the plaintiff from recovering a judgment against her for
the amount of the assessment in question, if she was,
within
the meaning of the statute, a shareholder in the bank at the
time of its suspension. But the question as to what property may be
reached in the enforcement of such judgment is not before us, and
we express no opinion upon it."
The present defendant insists that she was incapacitated under
the Constitution of Florida and under the decisions of the supreme
court of that state from becoming the owner of the stock bequeathed
to her by her father. In support of this proposition, we are
referred to the following provision in a statute of Florida enacted
November 6, 1829:
"The common and statute laws of England which are of a general,
and not of a local, nature, with the exception hereinafter
mentioned, down to the fourth day of July, 1776, be and the same
are hereby declared to be in force in this state, provided the same
be not inconsistent with the Constitution and laws of the United
States and the acts of the legislature of this state."
Also, to the following provisions of the Constitution of
Florida:
"All property, real and personal, of a wife, owned by her before
marriage or lawfully acquired afterward by gift, devise, bequest,
descent, or purchase, shall be her separate property, and the same
shall not be liable for the debts of her husband without her
consent, given by some instrument in writing, executed according to
the law respecting conveyances by married women."
Art. 11, § 1.
"A married woman's real or personal property may be charged in
equity and sold or the uses, rents, and profits thereof
sequestrated for the purchase money thereof; or for money or things
due upon any agreement made by her in writing for the benefit of
her separate property, or for the price of any property purchased
by her, or for labor and material used with her knowledge or assent
in
Page 201 U. S. 225
the construction of buildings, or repairs, or improvements upon
her property, or for agricultural or other labor bestowed thereon
with her knowledge or consent."
Art. 11, § 2.
The argument is that, at common law, a married woman could not
make, or bind herself personally by, a contract, and was incapable,
by the law of Florida, as at common law, of entering into a
contract, at least one that would subject her to personal
liability; that the relation of a shareholder to a national banking
association was of a contractual character, and consequently to
render a personal judgment against the defendant Mrs. Christopher
was, in effect, to hold her personally bound by a contract which,
under the laws of Florida, she was incapable of making.
The vice in this argument is in the assumption that the
liability of Mrs. Christopher as a shareholder arises wholly out of
contract between herself and the bank or its creditors, whereas,
upon becoming a shareholder, she made, strictly, no direct contract
with anyone, and became, as was held in
Keyser v. Hitz,
above cited,
by force of the statute individually
responsible to the amount of her stock, for the contracts, debts,
and engagements of the bank equally and ratably with other
shareholders. Such statutory liability was created for the
protection of creditors, and in order to strengthen the bank in the
confidence of the public. The bank, although its shares of stock
were private property, was an instrumentality of the general
government in the conduct of its affairs.
Farmers' &c. Nat.
Bank v. Dearing, 91 U. S. 29,
91 U. S. 33. In
Davis v. Elmira Savings Bank, 161 U.
S. 275,
161 U. S. 283,
the Court said that
"national banks are instrumentalities of the federal government,
created for a public purpose, and as such necessarily subject to
the paramount authority of the United States."
This principle was reaffirmed in
Easton v. Iowa,
188 U. S. 220,
188 U. S. 237.
See also Pacific Nat. Bank v. Mixter, 124 U.
S. 721.
In
McClaine v. Rankin, 197 U.
S. 154,
197 U. S.
161-163, which was an action against a shareholder of a
national bank to recover the amount due on an assessment made by
the Comptroller of
Page 201 U. S. 226
the currency, and in which the question was as to the nature of
the cause of action, this Court said:
"Some statutes imposing individual liability are merely in
affirmation of the common law, while others impose an individual
liability other than that at common law. If § 5151 had provided
that subscribing to stock or taking shares of stock amounted to a
promise directly to every creditor, then that liability would have
been a liability by contract. But the words of § 5151 do not mean
that the stockholder promises the creditor as surety for the debts
of the corporation, but merely imposes a liability on him as
secondary to those debts, which debts remain distinct, and to which
the stockholder is not a party. The liability is a consequence of
the breach by the corporation of its contract to pay, and is
collateral and
statutory. . . . But here, the right to sue
did not obtain until the Comptroller of the Currency had acted, and
his order
was the basis of the suit. The statute of
limitations did not commence to run until assessment made, and then
it ran as against an action
to enforce the statutory
liability, and not an action for breach of contract."
In
Robinson v. Turrentine, 59 F. 554, 555, it was held
that the liability of a married woman for an assessment upon
national bank stock did not grow out of contract, although it was
one of a class of liabilities which may be enforced by an action in
from
ex contractu. In the same case, it was said:
"By the banking laws of the United States, all the shares in the
stock of national banks are liable to an assessment like the one
levied on the stock of plaintiff's bank. To hold that a state law,
were there such a law, could except certain shares from the
liability would enable states to defeat the policy of the federal
government in establishing the national banking system. That the
Congress has power to establish and legislate for such banks has
not, since 1819, been an open question.
M'Culloch v.
Maryland, 4 Wheat. 316. If a purchase of stocks in
a national bank by a married woman without the written consent of
her husband gives her the ownership of such stock, judgment must be
given against the
feme defendant.
Page 201 U. S. 227
If she owned the stock at the failure of the bank, she is liable
to the assessment; if she did not, she is not liable. While the
federal government exclusively controls the question of the
liabilities of stockholders in national banks, it is not doubted
but that a state has power to say that, for reasons seeming good to
its legislature and not in conflict with organic law, a particular
class of persons shall not be permitted to own particular classes
of property."
In
Kerr v. Urie, 86 Md. 72, 77, it was held that a
married woman residing in Maryland was capable of holding shares of
stock in a national bank located in Texas, and as such shareholder
was subject to the personal liability imposed by the national
banking laws, without regard to the question whether she was
entitled, under the laws of the state where the bank was located,
to become the owner of such stock. The court said:
"We conclude, therefore, that, by virtue of the transfer in
Maryland, and without regard to the laws of Texas, Mrs. Urie became
the equitable and real holder of the stock in question, and if this
be so, no question as to her powers of disposition, or as to
whether she is or is not capable under the laws of Texas to make
contracts, can arise in this case, for the liability of a
stockholder arises not under any law of Texas, which it is
contended has not been proven in this case, but under the act of
Congress, and the contracts which it is claimed she is liable on
are not her contracts, but the contracts of the bank.
Witters
v. Sowles, 35 F. 641; § 5152, Rev.Stat. The right to be a
stockholder is given to her by the law of the state where she
resides, and her rights and liabilities as such as are provided
by the acts of Congress."
Recurring to the provisions in the statute and Constitution of
Florida, it is clear that they do not incapacitate a married woman
in that state from becoming the owner, by request or otherwise, of
stock in a national banking association. On the contrary, it seems
that all property, real or personal, owned by a married woman
before marriage or lawfully acquired afterward by gift, devise,
bequest, descent, or purchase, is her
Page 201 U. S. 228
separate property. Nevertheless, it is said, by the settled
course of decisions in that state, a married woman cannot bind
herself personally by contract at law or in equity, or by becoming
a partner, or by making a promissory note.
Dollner v.
Snow, 16 Fla. 86;
Hodges v. Price, 18 Fla. 342;
Goss v. Furman, 21 Fla. 406;
De Graum v. Jones,
23 Fla. 83, and
Randall v. Bourgardez, 23 Fla. 264. But
those cases are not in point here, for in each of them the personal
liability attempted to be imposed upon the married woman arose
entirely out of contract, express or implied, on her part, and not
by force of any statute. The argument made in this case in behalf
of Mrs. Christopher assumes that the liability sought to be
fastened upon her arises wholly out of contract -- that is, out of
an implied obligation at the time her name was placed on the
registry of shares and she received dividends, to contribute to the
extent of the value of such shares to the payment of the debts of
the bank. But that implied obligation, although contractual in its
nature, could not, standing alone, be made the basis of this
action. Without the statute, she could not be made liable
individually for the debts of the bank at all. No implied
obligation to contribute to the payment of such debts could arise
from the single fact that she became and was a shareholder. Her
liability for the debts of the bank is created by the statute,
although in a limited sense there is an element of contract in her
having become a shareholder, and the right of the receiver to
maintain this action depends upon, and has its sanction in, the
statute creating liability against each shareholder, in whatever
way he may have become such. There have been cases in which there
appeared such elements of contract as were deemed sufficient, in
particular circumstances, to support an action.
First Nat. Bank
v. Hawkins, 174 U. S. 364,
174 U. S. 372;
Whitman v. Oxford Nat. Bank, 176 U.
S. 559,
176 U. S.
565-566;
Matteson v. Dent, 176 U.
S. 521. But that fact does not justify the contention
that an action upon an assessment made by the Comptroller is not
based upon the statute.
Page 201 U. S. 229
In
McDonald v. Thompson, 184 U. S.
71,
184 U. S. 73,
which was the case of a formal subscription to the capital stock of
a national bank, and which also involved the meaning of the words
"contract or promise in writing" in a statute of limitations, the
Court said:
"There was no contract in writing with the creditors or
depositors of the bank, and none with the bank itself, to which the
receiver could be said to be a privy, except to pay for the stock
as originally issued. Granting there was a contract with the
creditors to pay a sum equal to the value of the stock taken, in
addition to the sum invested in the shares, this was a contract
created by the statute, and obligatory upon the stockholders by
reason of the statute existing at the time of their subscription;
but it was not a contract within the meaning of the Nebraska act
[of limitation], since the writing -- that is, the subscription --
contained no reference whatever to the statutory obligation, and no
promise to respond beyond the amount of the subscription. In none
of the numerous cases upon the subject in this Court is this
obligation treated as an express contract, but as one created by
the statute and implied from the express contract of the
stockholders to take and pay for shares in the association."
All shareholders of stock in national banks become such subject
to the condition, declared by statute, that liability, to the
extent of their shares, is imposed upon them for the contracts,
debts, and engagements of the bank. The statute in effect says to
all who become owners of national bank stock, no matter in what way
they become shareholders, that they cannot enjoy the benefits
accruing to shareholders and escape liability for the contracts,
debts, and engagements of the bank. In other words, the government
that created the bank has prescribed the terms upon which ownership
of its shares could be acquired, and individual liability incurred
shareholders -- executors, administrators, guardians, or trustees
only being exempted from individual liability. No exception is made
in favor of married women holding property. If the Constitution or
statutes of Florida had expressly incapacitated or forbidden
Page 201 U. S. 230
a married woman from becoming, under any circumstances, the
owner of bank shares -- as counsel for plaintiff in error insists
is the case -- a question would be presented that does not arise
upon the record of this case, and as the local law does not forbid
married women from becoming the owners of bank stock, we do not go
beyond what is necessary for the decision of the present case under
the national banking law. All that we now decide is that the court
below properly interpreted the statute, and did not err in
rendering a personal judgment against Mrs. Christopher, as a
shareholder in the bank, for the amount due under the assessment of
the Comptroller. In what way the plaintiff may proceed in order to
obtain satisfaction of the judgment is not a question to be
determined in this action.
Judgment affirmed.
MR. JUSTICE WHITE and MR. JUSTICE McKENNA concur in the
result.