Deitrick v. Greaney ( 1940 )

Mr. Justice Stone

delivered the opinion of the Court.

The question to be decided is whether a receiver of a national bank may compel payment of a promissory note knowingly given to the bank by one of its directors as a substitute, among its assets, for shares of its own stock illegally purchased and retained by the bank but with the understanding that it was to retain its interest in the stock and that the note was not to be paid.

Petitioner, receiver appointed by the Comptroller of the Currency for the Boston-Continental Bank, a national banking association, brought suit against respondent, a director of the bank, and others, in the District Court for Massachusetts to collect an assessment upon shares of stock in the insolvent bank and to recover on respondent’s promissory note, found by . the receiver among its assets.

The trial court'found that the Boston National Bank, predecessor of the insolvent bank, had acquired by purchase, 190 shares of its outstanding capital stock in violation of R. S. § 5201, 12 U. S. C. § 83, which declares that “no'.association shall ... be the purchaser or holder of any súch shares”;¹ that respondent as a means of concealing the illegal acquisition of the stock and of. enabling the bank to retain its ownership of the stock, prevailed upon his co-defendant. Karnow to execute an accommodation note, payable to the bank, the proceeds of which were deposited in another bank to the credit of respohd--ent who then paid them to the Boston National Bank for the 190 shares of stock which were then transferred to the respondent on the books of the bank.

Following a renewal of the Karnow note respondent transferred the shares to him on the books of the bank and upon consolidation of the Boston with the Continem tal National Bank, to form the Boston-Continental National Bank of which petitioner later became receiver, new shares of the consolidated bank were issued in exchange for the old. Part of them were sold and the proceeds used in- reduction of the Karnow note. Respondent then gave to the bank his own note for the balance, in substitution for Karnow’s note,' and caused the remaining shares to be transferred to the name of Mahoney, also a defendant in the suit, without informing him of the transfer.

The court found that the entire transaction was devised and carried out by respondent for the purpose of concealing the bank’s ownership of the stock by ostensibly removing the shares of stock from its assets and carrying the successive notes in their stead as receivables on the books of the bank with a secret agreement that the stock should be held for the Boston and later for the Boston-Continental Bank without liability on the part of the maker of the note. The court found liability of respondent for the assessment upon the shares held by Mahoney for his account, concluded that he was estopped to deny liability on the note and decreed accordingly that respondent alone should pay the stock assessment and the amount due on the note, 23 F. Supp. 758.

The Court of Appeals for the First Circuit reversed so much of the decree as allowed recovery on the note. 103 F. 2d 83. It confirmed the findings of the. trial court. But it held that the. circumstances which they detailed did not preclude the defense of want of consideration to the demand of the receiver, more than to that of the bank itself.

We granted certiorari, 308 U. S. 535, on petition of the receiver because of the public importance of the question in the administration of the National Bank Act and of the conflict of the decision below with that of the Court of Appeals for the Fourth Circuit, in Federal Reserve Bank v. Crothers, 289 F. 777, and that of the Fifth Circuit in Bohning v. Caldwell, 10 F. 2d 298.

The National Bank Act constitutes “by itself a complete system for the establishment and government of National Banks.” Cook County National Bank v. United States, 107 U. S. 445, 448. In addition to thesecttions of the Act conferring on national banking associations the authority to conduct a public banking business the Act contains numerous provisions designed for the protection of the bank’s depositors and other creditors. It establishes minimum requirements for the amount of capital with which a bank may begin business, R. S. § 5138, 12 U. S. C. § 51, and makes special provisions for securing the payment into the bank of the authorized capital, R. S. §§ 5140, 5141, 12 U. S. C. §§ 53, 54. It prohibits the purchase by a bank of its own shares of stock and their retention when purchased, R. S. § 5201, 12 U. S. C. § 83. Impairment of capital of an association through its withdrawal by payment of dividends or otherwise is prohibited, R. S. § 5204, 12 U. S. C. § 56. Any bank whose capital has become impaired is required under direction of the Comptroller to make up the deficiency by assessment of its shareholders and in the event of its failure to do so a receiver may be appointed to wind up its business, R. S. § 5205, 12 U. S. C. § 55.

To insure performance of these duties and as a safeguard to creditors and the public, violation of the provisions of the Act by any director or officer of the bank or by any person aiding or abetting him, is made a criminal offense, R. S. § 5209, 12 U. S. C. § 592, and in the event of such a violation, the association may be required to forfeit all its rights and privileges, R. S. § 5239, 12 U. S. C. § 93. Further, by R. S. § 5240, 12 U. S. C. §§ 481, 484, the Comptroller of the Currency is required to appoint examiners who shall examine the affairs of every bank at least twice in each calendar year with power to administer oaths and examine officers and .agents of the bank under oath and who “shall make a full and detailed report” of the bank to him. By R. S. § 5211, 12 U. S. C. § 161, every association is required to make to the Comptroller of the Currency not less than three reports each year exhibiting in detail and under appropriate heads the resources and liabilities of the association, and the Comptroller is given power to call for special reports whenever, in his judgment, the same are necessary in order to obtain a full ánd complete knowledge of the condition of the reporting bank.

The obvious purpose of prohibiting the purchase by a bank of its own stock is to prevent the impairment of its capital resources and the consequent injury to its creditors in the event of insolvency. The provisions of the Act-requiring periodic examinations and reports and the powers of the Comptroller are designed to insure prompt discovery of violations of the Act and in that event prompt remedial action by the Comptroller. These purposes would be defeated and the command of the statute nullified if a director or officer or any’ other by his connivance could place in the bank’s portfolio his obligation good on its face, as a substitute for its stock illegally acquired, and if he remained free to set up that the obligation was, in effect, fictitious, intended only to aid in the accomplishment of the injury at which the statute is aimed.

Here, respondent, with full knowledge of the unlawful purpose to conceal the presence of the stock among the bank’s assets, gave in exchange for it, first another’s note and then his own, knowing that it was to be availed of as an apparently valid and lawful asset so as to forestall the remedies available under the statute for the unlawful purchase. The notes were thus carried as receivables on the books of the bank for a period of more than two years, respondent's own note or renewals of it being lodged with the bank from May 4, 1931 until the bank closed its doors in December, 1931.

If the matter were of importance we could not assume, in the absence of proof, that the bank examiners did not perform their statutory duty or that respondent’s note was not as it was intended to be the effective means of concealing the impairment of the bank’s capital structure and preventing resort to the remedies for it which the statute affords. But it is enough for present purposes that the respondent, after placing his note among the bank’s receivables in substitution for the shares of stock, as the means of avoiding the consequences of violation of the statute, may not now take the benefit of the secret and illegal agreement that his note except for purposes of deceiving the bank examiners was to be regarded as a nullity. If respondent were free to set up the unlawful agreement as a defense and thus cast the loss from the unlawful stock purchase on the creditors of the bank in receivership, he would be enabled to defeat the purpose of the statute by taking advantage of an agreement which it condemns as unlawful. That, we think, the law does not allow.

It is a principle of the widest application that equity will not permit one to rely on his own wrongful act, as against those affected by it but who have not participated in it, to support his own asserted legal title or to defeat a remedy which except for his misconduct would not be available. See United States v. Dunn, 268 U. S. 121, 133; Independent Coal & Coke Co. v. United States, 274 U. S. 640, 648. Applied in cases like the present, the rule that the illegal agreement may not be set up to defeat the obligation of the note is sometimes denominated an equitable estoppel.² Lyons v. Westwater, 181 F. 681; 193 F. 817; Federal Reserve Bank v. Crothers, 289 F. 777; Bohning v. Caldwell, 10 F. 2d 298; cert. den., 271 U. S. 663; Utley v. Clarke, 16 F. Supp. 435; Iglehart v. Todd, 203 Ind. 427; 178 N. E. 685; Denny v. Fishter, 238 Ky. 127; 36 S. W. 2d 864; Prudential Trust Co. v. Moore, 245 Mass. 311; 139 N. E. 645; Longley v. Coons, 244 App. Diy. 391; 280 N. Y. S. 17; aff’d 268 N. Y. 712; 198 N. E. 571; Bay Parkway Nat. Bank v. Shalom, 270 N. Y. 172; 200 N. E. 685; see First National Bank v. Smith, 132 Pa. Super. 73; 200 A. 215.

In a strict and technical sense an estoppel arises only when a misrepresentation has prejudiced another who has relied upon it. For that reason courts have sometimes held that one in the position of respondent is not estopped to set up the agreement against the bank or the receiver either because it did not appear that the bank was deceived by* the concealment and misrepresentation or because injury to creditors was not shown to have resulted from them, cf. Peterson v. Tillinghast, 192 F. 287; Cutler v. Fry, 240 F. 238; First State Bank v. Morton, 146 Ky. 287, 293; 142 S. W. 694; Quincy Trust Co. v. Woodbury, 1938 Mass. Adv. Sh. 475; 13 N. E. 2d 377; Agricultural Credit Corp. v. Scandia American Bank, 184 Minn. 68; 237 N. W. 823. But stated more precisely, the doctrine with which we are now concerned is not strictly that of estoppel as thus defined. It is a principle which derives its force from the circumstances that respondent’s act, apart from its possible injurious consequences to creditors, is itself a violation of the statute; and that the statute, read in the light of its purposes an'd policy, precludes resort to the very acts which it condemns, as the means of thwarting those purposes by visiting on the receiver and creditors whom he represents the burden of the bank’s unlawful purchase. Pauly v. O’Brien, 69 F. 460; Niblack v. Farley, 286 Ill. 536; 122 N. E. 160; Iglehart v. Todd, supra, 442; 178 N. E. 685; Cedar State Bank v. Olson, 116 Kan. 320, 323; 226 P. 995; Denny v. Fishter, supra; Parker v. Parker, 287 Mich. 49; 282 N. W. 897; German-American Finance Corp. v. Merchants’ & Mfrs. State Bank, 177 Minn. 529; 225 N. W. 891; Vallely v. Devaney, 49 N. D. 1107; 194 N. W. 903; Bay Parkway Nat. Bank v. Shalom, supra; Mount Vernon Trust Co. v. Bergoff, 272 N. Y. 192 196; 5 N. E. 2d 196; Putnam v. Chase, 106 Ore. 440; 212 P. 365. See Schmid v. Haines, 115 N. J. L. 271; 178 A. 801. Williston on Contracts (Rev. ed.) § 1632; Zollman, Banks and Banking, § 4783.

Since it is by virtue of the statuté that respondent’s agreement is unlawful and that the benefit of it as a defense to the note is denied; and as the purpose of the statute is to protect creditors of the bank from the hazard of violations of the Act like the present, it is immaterial that the bank’s officers were participants in the illegal transaction, Texas & Pacific Ry. Co. v. Pottorff, 291 U. S. 245; City of Marion v. Sneeden, 291 U. S. 262; Awotin v. Atlas Exchange National Bank, 295 U. S. 209, or that the receiver has not shown that the creditors have been deceived or specifically injured as the result of the illegal contract. Cf. Mount Vernon Trust Co. v. Bergoff, supra, 196. It is the evil tendency of the prohibited acts at which the statute is aimed, and its aid, in condemnation of them, and in preventing the consequences which the Act was designed to prevent, may be invoked by the receiver representing the creditors for whose’ benefit the statute was enacted.

Rankin v. City National Bank, 208 U. S. 541 and Deitrick v. Standard Surety. Co., 303 U. S. 471, on which respondent relies, do not call for any. different conclusion. Because of certain statements obiter in the opinion in the Rankin case, it has been taken as controlling in a number of cases resembling the present, by the Court of Appeals for the Eighth Circuit,³ and in one case in the Sixth Circuit.⁴ In cases already cited,.Courts of Appeals in other circuits have reached a different conclusion. It was to resolve this conflict that we granted certiorari. The Rankin case was tried below and decided here upon the concession of counsel that the transaction involved was not illegal, 208. U. S. 547. Here it is the reach of the statute making respondent’s acts illegal and affording protection from them to the creditors which governs our decision.

In the Deitrick case, suit was brought against a surety company, on its surety bonds, by a bank’s receiver not alleged to represent any innocent creditors-who were injured because of their reliance on the bond. The company’s agent, as alleged and as found by the two courts below, had, to the knowledge of the bank’s president, executed and delivered the bonds to' the bank without consideration and without the company’s knowledge or authority, all in collusion with the bank’s officers in a fraudulent conspiracy to deceive the bank examiner. The company insisted that as it was the innocent victim of its agent’s unauthorized acts in carrying out the conspiracy it could not be charged with responsibility for them on the theory of estoppel or of its own participation in the illegal transaction. Because of this state of the pleadings and of the record, the court found itself unable to hold that the National Bank Act imposed liability on the surety company. The decision of this Court was rested specifically, as was that of the Circuit Court of Appeals below, on the ground that the pleadings had limited the receiver’s demand to the right of the bank to recover upon the bond procured by the fraud of its officers. This was shown, the Court declared, by the failure of the pleadings to allege any wrongful act for which the company was chargeable or which was injurious to creditors. It said, page 480, that the receiver “makes no suggestion of a purpose attributable to the company to mislead creditors or others, makes no allegations of damage except that sustained by the bank. He sets up .no facts which could render unconscionable a denial of liability upon the bond because of the agent’s fraud obviously 'induced by the president of the bank.” We did not decide that in an action against one who, like respondent, is alleged and proved to be a participant in the illegal transaction, he can- be heard to set up the defense of his illegal action to defeat the statutory policy aimed at the protection of creditors.

A point much discussed in brief and argument, upon the assumption that local law will guide our decision, see Erie R. Co. v. Tompkins, 304 U. S. 64, is whether, by Massachusetts law respondent is precluded from setting up the illegality of the transaction as. a defense to his note. But it is the federal statute which condemns as unlawful respondent’s acts. The extent and nature of the, legal consequences of this condemnation, though left by the statute to judicial determination, are nevertheless to be derived from it and the federal policy ’Which it has adopted, see, Board of County Commissioners of Jackson County v. United States, 308 U. S. 343, and cases cited. We have recently held that the judicial determination of the legal consequences which flow from acts condemned as unlawful by the National Bank Act involves decision of a federal, not a state question. Awotin v. Atlas Exchange National Bank, supra.

Reversed.

Mr. Justice Murphy took no part in the consideration or decision of this case.

1 “No association shall make any loan or discount on the security of the shares of its own capital stock, nor be the purchaser or holder of any such shares, unless such security or purchase shall be necessary to prevent loss upon a debt previously contracted in good faith; and stock so purchased or acquired shall, within six months from the time of its purchase, be sold or disposed of at public or private sale; or, in default thereof, a receiver may be appointed to close up the business of the association, according to section fifty-two hundred and thirty-four [12 U. S. C. § 192].”

2 In a number of cases it has been held that the indirect benefit of the transaction to the obligor as a creditor or shareholder of the bank is sufficient consideration to support recovery. See New v. Page, 144 Md. 606; 125 A. 403; Hurd v. Kelley, 78 N. Y. 588; State ex rel. Lattanner v. Hills, 94 Ohio St. 171; 113 N. E. 1045; First National Bank v. Boxley, 129 Okla. 159; 264 P. 184; Arthur v. Brown, 91 S. C. 316; 74 S. E. 652. But whether-the liability is sustained on this ground or that of estoppel it is apparent that the statutory policy of protection to creditors underlies both. See Brannan, Negotiable Instruments Law (6th ed.) 459.

3 Yates Center National Bank v. Schaede, 240 F. 240, 241; Hookway v. First National Bank, 36 F. 2d 166; Andresen v. Kaercher, 38 F. 2d 462. Cf. Cutler v. Fry, 240 F. 238; Keyes v. First National Bank of Aberdeen, 20 F. 2d 678.

4 Peterson v. Tillinghast, 192 F. 287.