MERRILL v. FIRST NAT. BANK OF JACKSONVILLE, 75 F. 148

PARDEE, Circuit Judge (after stating the facts as above). As this case was heard upon the bill and answer, it follows that all matters well pleaded in the bill, and not denied or avoided in the answer, responsive to the bill, or in avoidance of the same, are to be taken as true.

Thus, considering the bill and answer, the following material facts appear: On the 17th of July, 1891, the First National Bank of Palatka failed, and thereafter the appellant was duly appointed by the comptroller of the currency as receiver of said bank, and entered upon his duties, taking charge of all the books, notes, accounts, property, and effects of the same. At this time the National Bank of Jacksonville, appellee herein, had two demands against the First National iBank of Palatka.

One of these was for sundry drafts, unsecured, for the sum of $(>,- 010.47, and the other was for certificates of deposit, loan, and interest, amounting to $10,093.34, and secured by collateral of the face value of $10,89(5.22. The said bank having tendered proper proof of its said claims, the comptroller allowed the unsecured demand of $0,010.47, but rejected the secured claim, directing the National Bank of Jacksonville to exhaust its collateral given to secure said demand, and then to prove the claim for the difference between the amount of the loan and interest and the amount realized from said collateral.

Upon this ruling by the comptroller the National Bank of Jacksonville proceeded to collect all the productive collateral, and credited the same upon the demand, and thereafter-wards presented a claim for allowance in the sum of $4,496.44, balance due on the $10,093.34 demand after applying the proceeds of collateral as collected. This claim was allowed by the comptroller. The National Bank of Jacksonville received dividends from.time to time as the same were declared based upon the unsecured demand and upon the balance of the secured demand as proved.

This condition remained until September 1.1, 189,4, when this suit was instituted for the .purpose of establishing the claim against the assets of the First National Bank of Palatka in favor of the National Bank of Jacksonville for the full amount of the secured debt as it existed at the time the receiver was appointed, without regard to the- collateral which was subsequently collected.

On this state of facts the unsecured claim for $6,010.47, which was allowed upon presentation, and upon which dividends have since been paid and accepted, may be left: out. of consideration, and the main question in this case is, had the National Bank of Jacksonville the right to prove up the full amount of its $10,093.34 claim, although secured by collateral, and receive dividends on the full amount thereof, without reference to the amounts that, might be subsequently collected on such collateral and applied on the same claim? The precise question was adjudicated in the case of Armstrong v. Bank, 16 U. S.

App. 465, 8 C. C. A. 155, and 59 Fed. 372, where nearly all the adjudged cases are reviewed, and the question is discussed on principle. In that case it was held that “the creditors of an insolvent national bank, in proving their claims, cannot be required to allow any credit for collection from collateral made subsequent to the declared insolvency of the bank, and before the filing of the proof of claim.” From an examination of many of the cases cited and reviewed in Armstrong v.

Bank, supra, as well as a consideration of the reasoning therein, we are compelled to concur with the rule as declared in that case, and therefore we hold in the instant case that when the National Bank of Jacksonville presented to the receiver the proof of its secured debt as it was on the day the First National Bank of Palatka failed, said proof should haVe been received, and the claim allowed without reference to the collateral held to secure the said claim, and that the said National Bank of Jacksonville is now entitled to have the claim adjudicated by proper decree in this case, and to be decreed to have such relief as the circumstances of the case and jurisdiction of the court will permit.

The appellant complains of the form of the decree appealed from, and strongly objects that certain relief therein granted was beyond the power of the court, and not warranted by the facts in the case.

It is objected that the appellant, as receiver, has no authority to declare any dividend payable to 'complainant, or to pay the complainant any dividends out of any assets that were in the hands of the receiver on March 15, 1894, or may hereafter come into his hands since the 15th day of March, 1894, because, he says, under the laws of the United States he is compelled to pay all moneys collected by him as receiver into the treasury of the United States, subject to the order of the comptroller of the currency, and that by the same laws the comptroller of the currency is alone authorized to declare and pay dividends.

Section 5234 of the Revised Statutes of the United States provides for the appointment and duties of receivers of national banks, and thereunder receivers are appointed by the comptroller of the currency, and they are under the direction of the comptroller, and are required to pay over all money made out of the assets of the insolvent bank to the treasury of the United States, subject to the order of the comptroller, and also make report to the comptroller of all other acts and proceedings.

Section 5236 of the Revised Statutes of the United States provides as follows: “From time to time, after full provision has been first made for refunding to the United States any deficiency in redeeming the notes of such association, the comptroller shall make a ratable dividend of the money so paid over to him by such receiver on all such claims as may have been proved to his satisfaction or adjudicated in a court of competent jurisdiction, and, as the proceeds of the assets of such association are paid over to him, shall make further dividends on all claims previously proved or adjudicated; and the remainder of the proceeds, if any, shall be paid over to the shareholders of such association, or their legal representatives, in proportion to the stock by them respectively held.” Under these statutes It seems clear that the assets of an insolvent national bank, when collected by the receiver, are entirely within the control and disposition of the comptroller of the currency, and that the receiver is without power in respect to the payment of dividends.

Numerous authorities have been cited by the counsel for appellee to the effect that the title to the assets of .an insolvent national bank is transferred to the receiver. Richmond v. Irons, 121 U. S. 27, 7 Sup. Ct. 788; Bank v. Colby, 21 Wall. 609; Bank v. Mixter, 124 U. S. 724, 8 Sup. Ct. 718; Scott v. Armstrong, 146 U. S. 499, 13 Sup. Ct. 148; Armstrong v. Bank, 133 U. S. 433, 10 Sup. Ct. 450.

In this last-mentioned case it appears that a decree directing the receiver to allow the claim for the full amount against the assets in his hands as receiver, and to satisfy it by paying such dividends as he had made theretofore and as should be made thereafter from the assets of the Fidelity Bank in the due course of administration, and to pay the defendant 25 per cent, already declared, with interest, etc., was confirmed by the supreme court. In none of the cases cited does it appear that the precise question was considered..

In general, the receiver of a national bank has been held to be a mere instrument of the comptroller, and subject in all respects to his instruction. Kennedy v. Gibson, 8 Wall. 498; Bank v. Kennedy, 17 Wall. 21. In Eastern Townships Bank v. Vermont Nat. Bank, 22 Fed. 186, the proper form of a decree in a case similar to the one in hand was considered in reference to

section 5236, Bev. St., and Case v. Bank, 100 U. S. 446. It was held that judgments in such cases should be certified by the receiver through the comptroller, and he paid in due course of administration. In Case v. Bank, supra, the judgment was, after reciting the amount of the demand, etc., as follows: •‘That Frank F.

Case, receiver, do recognize the said Citizens’ Bank of Louisiana as creditor, * * * and that he do’pay the same or certify the same to the comptroller, to be paid Sh due course of administration; * * * and that the Citizens’ Bank of Louisiana do receive, before further payment to creditors, its due proportion of dividends pro rata with those already paid to the creditors of the Crescent Orfy National Bank.” In this case it does not appear that the form of the judgment was contested, but in affirming the judgment the court did say: “Beyond all doubt, the validity of their debt is established by the verdict and judgment; and, if so, it requires neither argument nor authorities to show that the order given by the circuit court to provide for the payment of the amount recovered was proper and correct.” Id. 450.

In the absence of a decision to the contrary by the supreme court of the United States, the law as declared in the statute above quoted should prevail. Appellant further objects that the court was without authority on the pleadings and facts to decree that the receiver should account to the court in the instant case as to the assets of the First National Bank of Palatka received and collected by him, and his expenditures of the same for the expenses and management of the receivership.

The appellant contends that the case made does not warrant any such accounting as is decreed, that the case was heard on hill and answer, and that the answer, which is admitted to be true, shows the amounts that the receiver had received and disbursed. The appellee had a right to resort to the court to have his claim adjudicated wheu it was refused by the comptroller, hut it is very doubtful whether, on the case made by the bill and answer, if in any case, the receiver, in a suit in which the comptroller is not a party, can he made to account for an administration of which the comptroller is solely responsible.

As we view the equities involved, a decree to the effect that on the 1st day of July, 1891, the First National Bank of Palatka was indebted to the National Bank of Jacksonville on a certificate of deposit secured by collateral in the sum off10,093.34, which indebtedness was duly proved, and should have been allowed, and dividends paid thereon; that said indebtedness is now allowed as of the date of July 1, 1891; and that the National Bank of Jacksonville be paid dividends on such indebtedness as have been allowed and paid on other indebtedness of said First National Bank of Palatka, with 8 per cent, interest ón such dividends from the date of declaration thereof, less a credit of the sums heretofore paid as dividends on that part of said claim heretofore allowed, provided, however, that the dividends heretofore paid and hereafter to be paid on said sum of $10,098.34, together with the amounts heretofore and hereafter received on the collaterals securing said indebtedness, shall not exceed 100 cents on the dollar on the principal and interest on said debt; that T.

B.

Merrill, receiver,, do recognize the said National Bank of Jacksonville as a creditor of the First National Bank of Palatka in the said sum of $1,093.34 ds of date July 17,1891; that he do pay the same or certify the' same to the comptroller of the currency to be paid in due course of administration; and that the said National Bank of Jacksonville do receive, before further payment to creditors, its due proportion of dividends as hereinbefore declared, with interest thereon, with those already paid to the other creditors of the First National Bank of Palatka, — will protect the rights of the' National Bank of Jacksonville as fully as the nature of the case and the jurisdiction of the court will permit, particularly in view of the conduct of the said bank in proving up part of its said claim, in accepting dividends on such part, and in delaying to bring this suit until after large dividends had been declared, and paid to the other creditors.

The decree of the circuit court is reversed, and the cause is remanded, with instructions to enter a decree in accordance with the views herein expressed; the costs of appeal to be paid by the National Bank of Jacksonville, and the costs of the circuit court by the receiver, as a part of the expenses of his administration.