On Rehearing. Appellee states that, while the holding of the majority establishes the liability of appellants for the payment of the rent claims sued upon, and that neither limitation nor estoppel is a legal defense thereto, that we failed to find that its claim is secured by lien, or that it is entitled to priority over unsecured creditors. Chief Justice JONES, in his dissent, expressed our opinion, as well as his own, when he said that, "Those creditors who did not have a contract lien are given, by law, an equitable lien upon such assets"; that is, the assets of the two banks; however, unless its rent claim is secured, either by contract or statutory lien, no reason exists, in our opinion, why appellee should be accorded priority over any other unsecured creditor of the banks.
Appellee further insists that we disregarded and refused to follow the former decision of this court in Ripy v. Redwater Lbr. Co.,48 Tex. Civ. App. 311, 106 S.W. 474, 477. The appointment of a receiver was sustained in that case on the ground that the defendant companies were in great danger of insolvency, and, on the further ground, as stated by Judge Rainey, that "both corporations had forfeited their corporate rights by the failure to pay their franchise tax. Rev.St. 1895, art. 1465. The forfeiture of corporate rights being designated by the statute, a ground for a receiver is conclusive on this question." It is obvious that the forfeitures involved in the Ripy Case were consummated without judicial ascertainment. Forfeiture is a loss suffered in consequence of having done or omitted to do a certain act, Myers v. State, 47 Tex. Civ. App. 336, 105 S.W. 48, 50; the words "penalty" and, "forfeiture" are generally used synonymously and a statute that inflicts forfeiture for its breach is considered penal in nature. Southern R. Co. v. Inman, etc., 11 Ga. App. 564, 75 S.E. 908, 910. We fail to find any conflict between the former decision and our views expressed by Chief Justice JONES; speaking for the majority, he said: "We understand such term [forfeiture] to mean the loss by a corporation of its charter and all rights thereunder, because of the *Page 481 doing of something prohibited by law, or the omission to do something required to be done by law, for which act of omission or commission the loss of the charter, and the rights thereunder, is the penalty assessed by law." That statement expresses our view and is, we think, in harmony with the weight of authority.
The charters of appellants have neither been forfeited nor has either corporation been dissolved, and, although in voluntary liquidation, each is at this time an existing corporate entity. Appellee contends, however, that these banks (one a national, the other a state) were in legal effect dissolved and forfeited their corporate rights, when they closed doors, ceased business, and went into voluntary liquidation, and that the appointment of the receiver was authorized under subdivision 3, art. 2293, R.S.
We cannot accept this view, for if it be conceded that the conduct of appellants justified forfeiture or dissolution, adjudication to that effect should have been made and penalty imposed by a court of competent jurisdiction; this has not taken place. The generally accepted doctrine announced in 7 R.C.L. 724, § 731, is that, "Although a corporation may forfeit its charter by an abuse or misuser of its powers and franchises, yet this can only take effect upon a judgment of a competent tribunal. Whatever neglect of duty or abuse of power the corporation may have been guilty of, it is perfectly clear that it has not lost its charter by forfeiture; until a judicial decree to this effect be passed, it will continue its corporate existence." The same doctrine was announced by our Supreme Court in Galveston, H. S. A. Ry. Co. v. State, 81 Tex. 595, 17 S.W. 67, 70, in an opinion by Judge Gaines, who said: "It is universally held as a general rule that the forfeiture of the franchises of a corporation cannot be claimed, in a collateral proceeding, merely because a ground of forfeiture may exist. The forfeiture must be declared in a judicial proceeding instituted for the purpose. Whether such proceeding shall be taken or not depends upon the will of the state, for it has the election to enforce the forfeiture or to waive it. When the rights of the corporation come into inquiry in a collateral proceeding, the case is to be treated as if no ground of forfeiture existed, unless there has been a judgment so declaring in a direct action by the state. [Citing authorities.]" That this doctrine applies fully to banking corporations, see 3 R.C.L. 650, § 279, and authorities cited in notes 15 and 16. So, we conclude that subdivision 3, art. 2293, R.S., authorizing the appointment of a receiver, where a corporation is dissolved, or has forfeited its corporate rights, has no application to the facts of the instant case.
Aside from the questions discussed, we think it exceedingly doubtful, in view of the provisions of our national and state banking codes and kindred statutes, whether, under any state of facts, a court is authorized, at the suit of a creditor, to appoint a receiver of a banking corporation (state or national) with authority to administer its affairs and liquidate its assets, but as the question is not raised, we refrain from the expression of a definite opinion on the subject.
After a careful consideration, we think appellee's motion for rehearing should be overruled, and it is so ordered.
Overruled.