was extended to cover cases of what was really a fictitious and fraudulent transfer made in anticipation of a failure. To meet the difficulty of proving knowledge and intent, a transfer made within sixty days of the failure of the bank was presumed to have been with such knowledge and intent. All such transfers as affecting the liability of the assignor, are declared to be nullities to be treated as if not made. Real transfers however, although made within the sixty days, are excepted to the extent that the assignor is liable only for such part of the assessment as cannot be collected from the assignee.
The liability of an assignee, neither to his assignor nor to the receiver of the bank arises out of the assignment, but because he has become a stockholder, and when the assignor and assignee are both liable, the primary obligation, as between themselves, rests upon the assignee.
The assignment here was after the liability had attached. A liability which is imposed upon a stockholder, who is such at the time the bank failed, cannot, without straining the language of the statute, be extended to one who becomes a stockholder after the failure. The owner of shares of stock in a failed bank does not by an assignment of his stock create any liability of the assignee either to the receiver of the bank or to the assignor of the stock. Nothing short of the agreement of the assignee to assume the obligation of the assignor would make the assignee responsible for the existing obligations of the assignor. These propositions are in accord with a sound policy of the law. It is not every closed bank whose stock is entirely worthless. A stockholder has the right to get any value he can out of it. If, however, his assignee is answerable for the debts of the bank, he could never find a purchaser.
We make the following findings of fact and state the following conclusions of law.
Findings of Fact.
1. The original defendants were stockholders of the bank when it failed.
2. The bank failed on March 14, 1933.
3. Neither of the additional defendants were stockholders of the bank when it failed.
Conclusions of Law.
1. Liability for the debts of the bank and to assessment for the payment of such debts is imposed by statute only upon stockholders who were such when the bank failed.
2. Neither of the additional defendants is liable to the receiver of the bank nor to their respective assignors for any assessment on stockholders because of the assignment of stock to them after the failure of the bank.
3. The original defendants are liable for the assessment levied upon them because stockholders of the bank at the time of its failure.
4. Plaintiff has the right to judgment against the original defendants.
5. The additional defendants should have judgment in their favor.
This disposition of the case relieves us of the duty of inquiring into a number of procedural questions.
To give definiteness of date and for other reasons, no judgment is now rendered, but leave is granted to enter judgment in accordance with this opinion.
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