Coffey v. Fisher (100 F.2d 51, 1938)

HICKS, Circuit Judge.

The parties will be referred to as they stood upon the record in the District Court.

The plaintiff appealed from an order sustaining a demurrer to his declaration. The declaration alleges that he was Receiver of the First National Bank of Chattanooga and that on April 19, 1934, the Comptroller 'of the Currency levied an assessment against each and every share of its capital stock for 100% of the par value thereof, payable on May 26, 1934; that on May 17, 1934, the Comptroller extended the time for payment subject to further order; and that on June 19, 1934, the time of payment was further extended by the Comptroller until June 26, 1934; that on June 22, 1934, the time was again extended by the Comptroller subject to further order; that these extensions were made at the request of the stockholders through a committee which protested the necessity of the hundred percent assessment and requested a reappraisal of the assets of the bank; that finally the reappraisal was completed and the necessity for the assessment was established to the satisfaction of the committee and that the Comptroller then, on March 11, 1935, further extended payment on the assessment to April 15, 1935; that under date of March 13, 1935, plaintiff gave notice of the assessment to all the stockholders including the defendant, J. G. Fisher, Executor of the Estate of S. F. Gettys, deceased.

The declaration farther alleged that S. F. Gettys died on August 1, 1933, the owner of 500 shares of the capital stock of the bank; that on August 19, 1933, defendant Fisher qualified as Executor of the estate of the deceased Gettys, and took into his possession the assets of the estate which were more than sufficient to pay the amount of the assessment upon the stock held by the defendant as executor, together with all other indebtedness of the estate; that Fisher, as executor, became liable for the full amount of the assessment with interest to be collected from the assets of the estate in his hands as executor.

Plaintiff’s suit was brought to enforce the statutory liability (Title 12, Sec. 66, U.S.C., 12 U.S.C.A. § 66) of the estate of Gettys for the benefit of creditors of the bank. The gravamen of the demurrer was that plaintiff’s action was barred by the Tennessee statute of limitations, Code of Tennessee, 1932, Sec. 8225, as follows:

“8225 4012 (2279). Creditors to sue, when. — The creditors of deceased persons, whether the former live within or without this state, shall, within eighteen months (which period shall be deemed to include the six months protective period) from the qualification of the executor or administrator, file with the latter their accounts, demands and claims, that are matured or accrued causes of action at the date of such qualification, and bring suit for the recovery thereof, or be forever barred. As to accounts, demands and claims not so matured or accrued, the period allowable before bar is six months from the date the cause of action thereon accrued. (Modified.)” (Italics ours.)

Plaintiff makes the point that the statute is not applicable because he was not a creditor of the deceased.

It is true enough that plaintiff’s cause of action is statutory (Forrest v. Jack, 294 U.S. 158, 162, 55 S.Ct. 370, 371, 79 L.Ed. 829, 96 A.L.R. 1457) but it originated m the stock ownership of Gettys. Had Gettys not once owned the stock plaintiff would have had no cause of action at all. His ownership was burdened with his double liability under Title 12, Sec. 63, U.S.C., 12 U.S.C.A. § 63, and it is this liability which plaintiff seeks to enforce against his estate. While Gettys’ liability was in a sense statutory, it was in a very real sense contractual.

In Matteson v. Dent, 176 U.S. 521, 525, 20 S.Ct. 419, 421, 44 L.Ed. 571, it was said:

“The obligation of a subscriber to stock to contribute to the amount of his subscription for the purpose of the payment of debts is contractual, and arises from the subscription to the stock. True, whether there is to be a call for the performance of this obligation depends on whether it becomes necessary to do so in consequence of the happening of insolvency. But the obligation to respond is engendered by and relates to the contract from which it arises. This contract obligation, existing during life, is not extinguished by death, but like other contract obligations survives and is enforceable against the estate of the stockholder.”

See, also, Richmond v. Irons, 121 U.S. 27, 7 S.Ct. 788, 30 L.Ed. 864; McDonald v. Thompson, 184 U.S. 71, 22 S.Ct. 297, 46 L.Ed. 437; Christopher v. Norvell, 201 U.S. 216, 228, 26 S.Ct. 502, 50 L.Ed. 732, 5 Ann.Cas. 740.

The suit, being for the benefit of creditors and having its origin in the stock ownership of Gettys, the plaintiff must be regarded as a creditor of Gettys. Such is the holding in Gillespie v. Broadway National Bank, 167 Tenn. 245, 68 S.W.2d 479, construing the term “creditors” as used in this statute, then styled Sec. 4012. The Gillespie Case is the last of a line of Tennessee cases holding that all persons having demands originating from contracts or agreements with the deceased are creditors of his estate in the sense of the statute. See Shannon’s Annotated Code, Vol. 4, Sec. 4012, note 3. Section 8225 appears as a part of Article 12 (Limitations of Suits Against Personal Representatives) of Chapter 2 (Administration of Estates) of Title III (Rights in the Estates of Decedents) of Part II (Private Rights) of the 1932 Code, and is a modification of Sec. 4012 of Thompson’s Shannon’s Code in effect prior to 1932, which reads as follows:

“Creditors to sue in two