67
I'
:1' .
(Circuit Court. N., :D·. Iowa. March ,18,1889.) , '.J
BANKS .AND BANKING - NATIOiNALBANKS SHAREHOLDER-PLEADING. '.
2.
cover an assessment ordered by the comptroller, atl allegation in tbe petitiuh. that on, a dar, named "the comptroller of tbe currency, in order to pay liabilities of ' the bank, "made lin assessment uponaJl tbe said sbares of the capital stock of said" bank of lOOper cent. upon its par value, "and oraered \' . the stockholders to pay the same on or before" a day named, is il1.l.fltcient to show ('hat the requisite action WitS, had by the comptroller, not only, determining upon the necessity of '6D aesessment. but aleo as to the enfQrcement thereof:by suit against the delinquent stockholders. " . ". . '.. SAME. . , )
.Am.'loN ·...GAINST " In an action by the receiver of's national bank against a sha.rehOlde'r td.ie· INSQLVENCY , .
An allegation following. "that by virtue of the and of in sucbcase made and provided, the defendant became and is to'Y0W' petitioner in the sum of, "etc.·' sufficiently shows that,defendant had becd£e indebted in the sum named, and also that such indebtedness still continued when the petition was filed. and ill AtlI1;vlll"nt to an allegation otnon-pay' ment. .
At Law. On demurrer to amended petition. w'William Graham, for plaintiff. . Hendtrr80n, Hurd, Daniels « Kiesel, for defendaI}t. SRIRAS, J.. The plaintiff is1the receiver of the Commercial National Bank of Dubuque, and in that capacity brings to recover an assessment of 100 per cent. upon the shares of stock of which iUs averred is the owner., The petition avers th,e o;rganization of the the bank under the laws of the United States, its insolvency, the appoilltment of plaintiff as receiver by the comptroller of the om-rency, and the fact that the assets are insufficient to pay the indebtedness. Then follows the ment that "on the 25th day ofJuly, A. D. 1888, the comptroller of the cunrency, in order to pay the liabilities of said banking association ,'made an upon all the said shares of the capital stock of said Commercial National Bank of one hundred per cent. upon the par value of said stock, and ordered the stockholders, to pay the same on or before the 25th day of August, A. D·. 1888, of all of which said defendant had notice; that by virtue of the premises, and of the statutes in such case made and vided, the defendant became and is indebted to your petitioner in the SUth of five thousand five hundred dollars, with interest thereQn from the 25th day of August, A. D. 1888; that this action is brought under the authority and by the directionof the said comptroller of the currency of the United States," To this petition a demurrer is interposed oh the g!ounds that it is not avel'red that the amount l,tSsessed ant has not been paid, and thatit does not appear that, prior to the mencement of the action, the co;mptroller had decitied that an assessment upon the capitalstOck was necessary, nOr that such.assessmeIl!t, if made, shquld be enforced by suit against the stockhq1delis.
68
J'EDERAL REPORTER,
vol. 38.
In Ke:nnedy v. GWson, 8 Wall. 4.98, the supreme court, in construing the sections of the statute governing the liability of the stockholders, and the mode of the enforcement thereof, held that it is for the comptroller to decide when it is necessary to institute proceedings against the stockholders to enforce their personal liability, and that action on his part is an indispensable prerequisite to the institution of suits by the receiver. Although not e,,:pressly so stated,it would appear that the supreme court holds that the comptroller must not only order an assessment to be levied upon the stockholders, but that it is for the comptroller to decide whether such assessment shall be enforced by suit. Assuming, at least, that this is the true construction of the opinion, does or does it not sufficiently appear from the allegations of the petiti,on that such action by the comptrolle{has been had? It is averred that for the purpose of paying the liabilities of the bank the comptroller made an assessment on all the shares of stock of 100 per cent. on the par value thereof, and ordered the stockholders to pay the same by a day fixed. Certainly the comP"' troller,would not have made this assessment unless he had decided that it was neceE'sary to enforce the personal liability of the shareholders. The evidence that he had reached the conclusion that it was necessary is found in the fact averred, to resort to the liability of the -that he had made this assessment, and .ordered its payment. In Ke:nnedy v. Gibson, the supreme cou,rt holds that thestockholders cannot controvert or question the decision or determination of the comptroller in this particular. If the comptroller orders the assessment, and its enforcement, that concludes the snareholder. The argument of counsel in support of the demurrer,-that the shareholders cannot be made liable, except by the 'comptroller hearing and deciding the question that necessity exists in the given case for the enforcement of this 'statutory liability on partoftheshareholders, is unquestionably well taken. It must be averred in the petition, and, if controverted, must be proven on the trial, that the comptroller did decide that necessity existed for the enforcement of the liability of the shareholder! The question arising on the demurrer, however; is as to the meaning of the allegations in the petition contained. It being therein averred that to meet the liabilities of the bank the comptroller ordered an assessment on the shareholders, ordered them to pay it by a day fixed, and directed suit to be brought to enforce payment, is slilfficient to show that the requisite action was had by the comptroller, not only as to the matter of the assessment, but also as to the enforcement thereof by suit against the delinquent stockholders. It is also urged that the petition is insufficient because it is not averred that the amount of the assessment has not been paid. The petition alleges the several facts constituting the claim against the defendant, and then avers "that by virtue of the premises, and of,the statutes in such case made and provided, the defendant became and is indebted to your petitioner in the sum of," etc. Two facts are herein averred: First, that by reason of the matters previously set 'forth the defendant had become indebted to the petitioner. in the sum named; second, that such indebtedness was in istence, or still continued, when the petition was filed. This could not
TRACY
v.
REED.
be true if the assessment had been previously paid, and it follows that the averment is the equivalent of that of non-payment. The demurrer is therefore overruled, with leave to defendant to answer.
TRACY 'IJ. REED.
«(Jircttit Oourt, D. Oregon. March 4, 1889.) L TAXATION-AssEBSMENT-VALIDITY.
By the act of 1882, (Comp. 1887, § 2735,) real property must be assessed to the owner thereof, unless it is unoccupied, and the owner unknown; and 8P assessment made to a person not the owner of the property is invalid. The owner of property, for the purpose of taxation, is the person having the legal title or estate thereto or therein, and not one who, by contract or otherwise; has a mere equity therein, or a right to compel a conveyance of such legal title or estate to himself.
B.
SAME-" OWNER. "
SAME-TAX-DEED-STIPUI,ATION-EFFECT.
An act of the legislature (Comp. 1874, p. 767, § 90) made a tax-deed sive evidence of the regularity of the assessment, except for fraud; and, on the trial of an action brought by the grantee in such a deed to recover . sion of the premises mentioned therein, the parties stipulated the existence of certain facts, from which it appeared in the judgment of the cou.rt that the assessment in question was made to a person not then the owner of the property. Held, that the effect of such stipulation was a waiver by the plaintiff of the conclusive character of the deed in this resnect, and an admission that, if in the judgment of thE! court the person to whom the property was assessed was not the true owner thereof, then the assessment was invalid, and the tax' deed void. .I
'" CONSTITUTIONAL LAW-OBLIGATION OF CONTRACTS-TAXATION-TAX-DEED AS EVIDENCE.
A tax-deed made in pursuance of a sale of property for a delinquent tax; under an act which provided that such deed shall be conclusive evidence of the regularity of the assessment, except for fraud, is a contract with the state that the deed shall so far remain conclusive evidence of title in the grantee therein, and a subsequent act of the legislature, making such deed only prima facie evidenceof such regularity, is void, because it impairs the obligation of the contract. The ruling in Marx v. Hantltorn, 12 Sawy. 377, 30 Fed. Rep. 579, on this point, affirmed. . (Syllabu8 by the OO'Urt.)
At Law. Action by Edward Tracy against Mary A. Reed, to recover land. W. Scott Beebe and John M.Gearin, for plaintiff. Alft'ed F. Sears and Paul R. Deady, for defendant. DEADY, J. This action is brought by the plaintiff, a citizen of California, against the defEmdant, a citizen of Oregon, to recover the possessiOIi Of lot 3, in block 206, of the Couch addition to Portland. . The pleadings consist of the complaint,answer, and reply, from it appears that the plaintiff claims title to the lot ullder a sale thereof for a delinquent tax, thereon, on June 18, 1884, towhicb claim