The original opinion in this case dealt only with the sufficiency of defendant's pleas. The question there presented was whether or not the defendant was estopped by the mere fact of issuance and acceptance of void bank stock from pleading as a defense that the issuance of defendant's bank stock wasultra vires, and that therefore the statutory liability thereon was unenforceable. In that opinion the Court held that per se no such estoppel obtained. See foregoing original opinion, Randall v. Mickle, also reported in 138 Sou. Rep. 14.
But as regards the rights of creditors, and the rights of the liquidator representing the creditors, to properly show an estoppel against the stockholder to preclude him from asserting the invalidity of the stock issue to avoid double liability on the stock, a different question arises.
Creditors of a bank ordinarily rely upon the bank'sapparent capital stock, irrespective of the mode of its issuance. Therefore negligence in accepting invalid stock, laches in failing to avoid a subscription for it, acceptance of benefits under it, and the intervening rights of innocent third parties who rely upon the apparent capital stock, may under particular circumstances, to be pleaded and established by proof, be sufficient to estop the subscriber or stockholder from asserting the invalidity of the issue to avoid double liability, when sued by the statutory liquidator representing the bank's creditors.
Nothing said in the original opinion should be construed as having foreclosed the liquidator in the instant case from so framing his pleadings as to present a showing of estoppel of this kind on the part of the defendant subscriber or stockholder, who would otherwise have the right to rely on and plead as a valid defense the ultra vires issue of the stock held by him and upon which the suit against him is based. *Page 1248
Section 4128 R. G. S., 6059 C. G. L. (now amended by Section 3, Chapter 13576, Acts of 1929) provides:
"Stockholders of every banking company shall be held individually responsible equally and ratably and not for one another for all contracts, debts and engagements of such company to the extent of the amount of their stock therein at the par value thereof in addition to the amount invested in such shares. Persons holding stock as executors, administrators, guardians or trustees shall not be personally subject to any liability as stockholders, but the estates and funds in their hands shall be liable in like manner and to the same extent as the testator, intestate, ward or person interested in trust funds would be, if living and competent to hold the stock in his own name."
Under this section it has been held that the stockholder's liability with respect to the bank's obligations is primarilycontractual (Tunnicliffe v. Noyes, 101 Fla. 794,135 Sou. Rep. 505), while assessment of bank stock to make good impairment of capital subserves an entirely different purpose from that intended to be subserved by the double liability of stockholders. Russ v. Golson, 102 Fla. 865, 136 Sou. Rep. 506. In the last case cited, it was distinctly held that double liability of stockholders is individual liability which does not arise, except in case of liquidation, when it is then enforced for benefit of the bank's creditors.
Construing our double liability statute in the light of its intended purpose, we see no good reason why the double liability thereby created for the benefit of creditors of banks, which liability this Court has specifically held to be contractual in its nature (Tunnicliffe v. Noyes, supra), may not upon the principles of estoppel, when such principles are properly invoked and pleaded, be visited uponostensible stockholders.
The interests of the public which depend upon the business of banking and its lawful conduct, the rights and relations of private citizens who deal with banks and which become vested in reliance upon the apparent compliance *Page 1249 by the banks with the provisions of the banking laws, the intolerable injustice and confusion which must inevitably result from ex post facto avoidance of liabilities apparently assumed and outstanding for the protection of a bank's creditors, commend the justice, and demand the enforcement of the rule, that when a bank stockholder has assumed, under color of authority and has accepted benefits from, or exercised for any considerable time, without objection by the officers of the State, the status of a stockholder of the kind recognized by statutory and organic law, neither the bank nor such stockholder can, in litigation with the bank's creditors or their legal representative, question the legality of the status of those who appeared to be stockholders, as against the intervening rights of third parties who relied upon the apparent status which seemed to exist.
The same conclusion has been reached on rehearing that was reached on the hearing first had, but any views expressed in the original opinion which may appear to be in conflict with the views here expressed, are modified to conform to this opinion on rehearing, but the first opinion is otherwise adhered to.
Judgment of reversal re-instated on rehearing, and cause remanded for further proceedings not inconsistent with this opinion or the original opinion as hereby supplemented and modified.
BUFORD, C.J., AND WHITFIELD, ELLIS, TERRELL, AND DAVIS, J.J., concur.
BROWN, J., dissents.