On Motion for Rehearing. Under our Constitution and statutes, as construed by the courts, record owners or the capital stock of a state bank at the time of or within twelve months next preceding the closing of such bank on account of its insolvency are liable upon assessment by the state banking commissioner for double the amount of the par value of such stock. This is the rule even though such stockholders of record do not in fact actually own the stock standing in their name upon the books of the bank, although the actual owners of such stock would be primarily liable upon such assessment. Chapman v. Pettus (Tex.Civ.App.) 269 S.W. 268; Heldenfels v. Chapman (Tex.Civ.App.) 283 S.W. 179. In adjudicating the relative liabilities of the actual and apparent owners of such stock, therefore, it is necessary to ascertain and determine the classification into which the respective parties fall.
In this case the partnership firm of Green Welhausen owned 110 shares of the capital stock of the Westhoff Bank on July 9, 1924, on which date William D. Green, one of the parties, entered into an executory contract to convey his partnership interest in said 110 shares to M. C. Driscoll. No transfer of this interest in said stock was made upon the bank's books, however, until after the bank became insolvent, and until within twelve months next preceding the closing of the bank. If the executory contract for the sale of Green's interest in the stock to Driscoll had not been performed by the beginning of the twelve-month period, then the firm of Green Welhausen, and the individual partners therein, were liable primarily upon said assessment because of actual ownership thereof, and secondarily because the stock stood in the firm's name on the bank's books. If said executory contract had been fully performed and said sale actually consummated, then the liability of Green, as a partner, upon said assessment was only secondary.
It therefore becomes important, in fact essential to a correct disposition of this case, to know whether said contract had been fully performed and said sale from Green to Driscoll fully consummated prior to the beginning of said twelve-month period. That is a question of fact which should have been determined by the trial court, in view of the state of the evidence. The trial court, however, declined to resolve that issue upon the trial, and this action has been assigned as error by the banking commissioner. We sustain the assignment. *Page 823
A majority of the court have concluded that appellant's motion for rehearing must be granted, and the judgment reversed, and the cause remanded. It is so ordered.