In Gift v. Love, 164 Miss. 442, 144 So. 562, the court held, in effect, that the statutory double liability of stockholders in a bank could not be gotten rid of by hook or crook; that such liability was rooted into and a part of the stockholder's contract for his stock subscription.
Now, let us see what has been done here. The depositors, which included at least some of the stockholders, who agreed to a sale of the asserts of the defunct bank to the new bank, signed a writing setting out the terms of the sale, one provision of which was in this language: "It is further agreed that in consideration of the premises the stockholders of the closed Merchants' Marine Bank are hereby released from all statutory liability for my deposit." The superintendent of banks presented to the chancery court, along with his petition asking that the sale be authorized, this agreement of the depositors. In the decree of the court authorizing the sale the plan outlined in the petition of the superintendent of banks was ratified; the assets of the old bank, which were sold to the new bank, were carefully and specifically described; and there is no mention, as a part of the assets of the double liability of the stockholders. In other words, there is no pretense in the decree of the court authorizing the transfer, that the double liability of the stockholders was to go to the purchasing bank as a part of the assets of the old bank. So, it appears very clearly that one of the outstanding purposes sought to be accomplished was to relieve the stockholders from double liability, a thing which, under the law, could not be done. The decree authorizing it to be done is void, and can be attacked either directly or collaterally upon that ground.
The controlling opinion states that the sale took place under the authority of this language in section 3817, Code 1930: "By and with the consent of the court or of the chancellor in vacation evidenced by an order entered in the liquidation proceedings he [superintendent of banks] *Page 61 may sell any of the property, real, personal or mixed, belonging to the bank either at private or public sale, and a deed made by him under the seal and attested by the secretary of the state banking department shall convey to the purchaser all of the rights, title and interest of the bank and of the state banking department in any such property." The court holds that the power given by this provision of the statute to sell any part of the property carried with it the power to sell all of it in bulk.
There would be force in that position, except for the following language in section 3792, Code 1930: "After the superintendent of banks has taken charge of an insolvent bank, he shall have power and authority by and with the consent of a majority of the directors, to sell all assets of such bank to any solvent existing bank at such price as the superintendent may consider a fair and reasonable value for all such assets, allowing such purchasing bank to assume the full amount due all creditors of the liquidating bank and paying the remainder of the purchase price, if any, to such liquidating bank. But in all cases the superintendent shall require the purchasing bank to execute to him and his successors in office a bond with one or more good and approved sureties for the benefit of all creditors agreed to be paid by such bank. And in case the purchasing bank fails to pay any creditor the full amount of his claim, he shall have the right to bring suit in the name of the superintendent against such purchasing bank and the sureties on its bonds, and all parties in interest may join therein."
Section 3817 takes up fully three pages of the Code. It is headed "Liquidation proceedings," and undertakes to set out in detail how the superintendent of banks shall liquidate insolvent banks whose affairs are taken over by him. The above-quoted provision of the statute, in my judgment, has reference alone to the sale of such parts of the assets of the bank as the superintendent and the chancery court, or chancellor, may deem necessary from time to time in order to turn such assets into money; *Page 62 in other words, it is strictly a liquidation statute. If, under it, the superintendent of banks with the consent of the chancery court, or the chancellor, could sell the entire assets of the bank in bulk, there would be no liquidation proceedings. The only statute that authorizes the sale of all the assets, in bulk, to another bank is the provision of section 3792 above quoted. It will be noted that it provides that the purchasing bank must be solvent and must pay a fair and reasonable value for the assets. The purchasing bank must assume in full all the debts of the liquidating bank, "paying the remainder of the purchase price, if any, to such liquidating bank." It provides that the superintendent shall require the purchasing bank to execute to him and to his successors in office a bond with one or more good and approved sureties for the benefit of all the creditors of the bank in liquidation, and, in case the purchasing bank fails to pay any creditor the full amount of his claim, the right is given him to bring suit in the name of the superintendent against the purchasing bank and its bond.
The record in this case demonstrates that the chancery court was proceeding under both sections 3792 and 3817, and not under either one of them alone. The court required a bond of the purchasing bank; that was not required by section 3817, but is required by section 3792. Furthermore, section 3817, as stated, contains a complete and detailed plan for the liquidation of an insolvent bank taken over by the superintendent, not a sale, in bulk, of all of its assets. It contemplates the turning of the assets into money — cash — for the benefit of the creditors of the bank.
Section 458, Code 1930, providing that the chancery court may decree the sale of property on such terms and at such time and place as the court may direct, has no application. The sale of all the assets of a bank to be paid for by the purchasing bank in installments running through a period of four years is not a liquidation proceeding. In such a case the creditors of a defunct bank *Page 63 are still unpaid; the assets of the bank are still unliquidated. In other words, the superintendent leaves off where he starts. A power to sell, in the absence of special authority or custom or usage to the contrary, authorizes only a sale for cash and not on credit. 2 C.J. 599; 9 C.J. 526; 49 C.J. 1273. See, also, 57 C.J. 113, particularly note 99. Therefore my view is that the sale was void for those additional reasons.
I agree with the majority opinion that appellants were not entitled to any preference out of the assets of the bank in liquidation; they are only entitled to share pro rata with other creditors holding like unsecured claims.
Appellants allege in their bill that the assets sold to the appellee bank were sufficient to pay all creditors in full. Appellants were not parties to the chancery court proceeding in which the sale was authorized; they are not bound by the decree in that case; it is not res adjudicata as to them. If the appellee received assets of sufficient value to pay all the creditors of the liquidating bank, it is liable for their claims in full. It is true that appellants asked for a preference, but they state the facts in their bill and have a prayer for general relief. Under their bill and such prayer they have a right to attack the sale — a credit sale — on the ground that the purchasing bank was liable for the full value of the assets it received.
Under the law one corporation cannot take over all the property of another and thereby deprive it of the means of paying its debts and enable it to dissolve its corporate existence, without assuming its liabilities. Meridian Light R. Co. v. Catar,103 Miss. 616, 60 So. 657.
I am requested by Chief Justice SMITH to say that he concurs in this dissent. *Page 64