On Motion for Rehearing.
On a former day of this term, we affirmed the judgment of the trial court, holding that the matters pleaded by appellant did not constitute a defense to appellee’s cause of action. Appellant has filed a motion for rehearing, and, among other things, asserts that the court erred in overruling appellant’s proposition No. 5, which is as follows:
“Where the plaintiff herein, through its agent, stated to the defendant that the payment of the sum of $1,666.66 would place the Citizens’ Guaranty State Bank of Lufkin, Tex., in good financial condition, and that said sum would be repaid to him, and that no future assessment could or would be made against him by reason of the insolvency of said bank, and said sum was so paid upon the faith of said statement and promise, which were not true, and which the plaintiff, at the time of the making pf same well knew were not true, constitute fraud upon the .part of the plaintiff herein and is sufficient as a defense in a suit of an assessment thereafter made against the defendant as a stockholder of said bank.”
*330' We think that all of the contentions of appellant in his motion for a rehearing are fully met in our original opinion, but as he so strongly insists that a promise was made to him and others of the directors who paid in the sum of $25,000 to restore the impaired capital of the bank, that if they made such payment they could not and would not be required to pay any future assessment by reason of the insolvency of the bank, and hence his said defense should have been sustained, we shall here again consider same. Article 365 (523), Revised Civil Statutes 1925, provides that, whenever the commissioner shall have reason to believe that the capital stock of any banking corporation subject to the provisions of the state banking law is reduced by impairment or otherwise below the amount required by law or its certificate or articles of association, he shall require such corporation to make good the deficiency. Under this law, the $25,000 was paid into the general treasury of the bank.
Article 535 (552) provides that, in case of the insolvency of a bank, each stockholder shall be liable for the debts of the bank to an amount double the par value of his stock. Under this law the assessment in controversy was made.
These laws are statutes regulating the conduct of state banks, the business in which appellant was engaged, and he must be held to have had knowledge of them, for all men are presumed to know the law. It is plain that the purposes of these statutes are wholly different, and that money paid by virtue of one does not meet the demand for payment under the other. As was said in our main opinion, the payment of the money to restore the impaired capital was for the benefit of the institution itself and of its stockholders, and not for the benefit of the creditors, for they could not participate in same. It was not intended to be applied to the payment of their claims, but was to enable the bank to continue in 'business and to be used for that purpose. The commissioner.of banking had no authority under the law to make any such promise as is alleged by appellant, that, if the payment of the assessment to restore the impaired capital was made, and the bank should in the future become insolvent, appellant could not and would not be made to pay the assessment provided by article 535 for the discharge of its debts, and, if the commissioner and appellant entered into any such agreement, it was void because it was against the provision of the law and a fraud upon the creditors whose protection was provided in said law. The said law could not be rendered nugatory by an agreement or contract between the commissioner and appellant. Scovill v. Thayer, 105 U. S. 143, 26 L. Ed. 968, 974; Sanger v. Upton, 91 U. S. 56, 23 L. Ed. 220, 222. If it should be considered that the bank owed appellant for the $1,-666.66 that he paid as for the restoration of impaired capital, even then he could not offset this debt against his assessment. The assessment made for the purpose of liquidating the affairs of the bank is a fund belonging in equity to all its creditors, and could not be appropriated by appellant to the exclusive payment of his own claim.
Sawyer v. Hoag, 17 Wall. 610, 21 L. Ed. 731.
The motion is overruled.