ANDRUSS V. PEOPLE'S BUILDING, LOAN & SAVING ASS'N.
cannot definitely be tried together in one record, or that some defendant is abh! tf> say that as to a large part of the transaction set out in the bill he has no interest or connection whatever."
The court is of opinion that all the defendants except the city can truthfully say that they have no interest or connection whatever with the transaction setout in the bill. The demurrer, therefore, is sustained on the ground that the bill is multifarious. 2. The demurrer is sustained because there is a misjoinder of parties in this suit. None of the defendants should be joined with the city in this action. 3. The demurrer is sustained on the ground that the plaintiffs in this suit can only recover against the city such damage as they show they have sustained up to the time the decree is rendered, and not for prospective damages, for the reason that, if an injunction is granted, it cannot be assumed it will be violated, and that other damages will be sustained, and for the reas<)ll, if a restraining order is finallJ refused, then the bill should be dismissed for want of jurisdiction inthe court, and the plaintiffs remitted to a court of law for such damages as they may have sustained. In short, the jurisdiction of the court in this ease rests upon the fact that the plaintiffs are suffering from a continuing nuisance created by the city. 4. The court is of opinion that the sixth ground of demurrerthat the city was acting under the laws of the state-is not well taken. The state cannot authorize such a nuisance as this, and, in the opinion of the court, has not done so. Bacon v. City of Boston, 154 Mass. 100, 28 :No E. 9. On this ground, therefore, the demurrer is overruled. 5. The seventh ground of demurrer, namely, that the plaintiffs have an adequa,te remedy at law, is not well taken, and the demurrer is overruled as. to that ground. 6. The eighth ground of demurrer, namely, that the plaintiffs ar:e not entitled to equitable relief, is not well taken. The bill I3tates a good cause of action against the city if sued alone, and the demurrer on this ground is overruled.
ANDRUSS et ux. v. PEOPLE'S BUILDING, LOAN & SAVING ASS'N.
(Circuit Court of Appeals, Fifth Circuit. :May 31, 1899.)
BUn,DING AND LOAN ASSOCIATIONS-USURy-WHAT LAW GOVERNS.
Where the by-laws of a building and loan association provide that all payments shall be made to its secretary at the office of the association in the state in which it is incorporated, and a bond and mortgage executed to the association by a borrOWing stockholder each contain a stipulation that it is to be governed by the laws of such state, the contract will not be held usurious, if not so by the laws of such state where it is to be performed. A federal court sitting in one state will take judicial notice of the public statutes of another state.
.d. JUDICIAL NOTICE-FEDERAL COURTS-STATUTES OF ANOTHER STATE.
94 FEDERAL the, f$tatutes of New York, the taking of premiums for loans made by building and loan associations does not render.. them usurious, under the general usury statutes. . A borrowing stockholder in a building and loan association, whose stock has been forfeited by the association, in accordance with its rules, for default In payment of dues, is not entitled to credit on his loan for the amount paid thereon. .
S'rOCKHOI,DERS--'FoRFEITURE OF STOCK·
'BUILDrNG 'AND LOAN ASSOCIATIONS--'USUlW-NEW YORK STATUTES.
HO)1ES1'EAD-ExECUTTON OF DISCLAIMER.
The execution and recording of a disclaimer of homestead rights by a husband and wife, in property not at the time occupied as a homestead, for the purpose of procming a loan on such property, will be given effect as an abandonment In favor of the mortgagee.
Appeal from the Circuit Court of the United States for the Northern District Of'l'exas.
This Is a bill iIi equity to forecloseil mortgage. It Is filed by the People's BUilding, Loan & Saving Association, a corporation organized under the laws of the state of New York, against George W. Andrnssand Hannah Andruss, residents and citizens of Texas. material facts, as agreed on between the parties, are as follows: "That on the 3d day of March, 1893. the defendants, George W. Andruss and his wife, Hannah Andruss, entered Into and executed and duly acknowledged a certll,incontract in writing with R. H. Andruss, a contractor, wherein and whereby the said contractor obligated himself to build ,on the premises hereinafter described, for the defendant,; in said cause, a certain two-story rock and brick house, 25 by 100 feet, within a period of three months from the date of said contract, and said contractor obligated himself by the terms of said contract to furnish all materials, and in a good, workmanlike manner to build and finish said house for said defendants; and, as a consideration therefor, by the terms of said contract said defendants agreed to pay said contractor the sum of $4,000. That thereafter said house was built and finished as above specified, and that whatever lien was acquired on said house and premises by the said R. H. Andruss was duly assigned and, transferred by him on, to wit, theM day of March, 1893, to plaintiff, and that plaintiff is now the owner of whatever lien is so acquired as. aforesaid to secure the payment of the bond sued upon. That defendant George ·W. Andruss applied to plaintiff fot' the advance of the money In question for the purpose of enabling him to build said house in accordance with said contract: That on, to wit, the 18th day of 1893, the plaintiff loaned to the defendants the sum of $3,000, less $300, which was reserved by the plaintiff as a bonus or premium on said loan, as especially provided for in . the charter and by-laws of plaintiff. That in consideration therefor said defendants executed and delivered to plaintiff the bond sued upon, bearing said last-named date, and fully described in plaintiff's bill. That said bond is hereto attached, and hereby referred to and made a part hereof. It is hereby agreed that ten per cent. of the amount 'due on 'said bond is a reasonable attorney's fee for bringing suit on said bond in foreclosing the said lien. That on the 18th day of March saId' defendants, for the purpose of further securing the pa;yment of said sums of money in said bond according to its legal tenor and effect, also executed, acknowledged, and delivered to plaintiff their certain deed of trust in writing, sued upon, 'fully described In plaintiff's bill, wherein and whereby the. defendants conveyed to E. A;. Walton, as trustee for plaintiff, lot No. 10, block No. 6, in Bishop's addition to the city of Dublin, in ]Jrath county, state of Texas. Said deed of trust is hereto attached, and hereby referred to anll made a part hereof. It i:sadmitted that the plaintiff is a buildlilgand loan association, with its. domiclle, principal office, and headqnarters in' the dtyof S'yracuse, state of New Y.ork; that its principal office and domicile was at Geneva, state of New York, at the time said contracts were executed, and that on the 11th. day of September, 1890, it procured a permit from the state of 'rexas, thI'qugh the secretary .of state of Texas, to do business in the state ()f Texas, as Ii. building and loan association, for the period of ten years next
after said date; that a copy of the articles of association and by-laws of said association are attached to the statement of facts in case of Plaintiff v. W. T. Leggett in this court, and hereby referred to and made a part hereof; that upon the 1st day of February, 1893, the defendant George "Y. Andruss, upon written application, procured thirty shares of stock of plaintiff company in series or class A, evidenced by certificate No. 5,841, to be paid for as provided in said certificate, which certificate is hereto attached, and hereby referred to and made a part hereof. Said stock was procured by said Andruss with a view of borrowing said money evidenced by said bond for $6,000. That at the time the defendant procured said loan the said George W. Andruss transferred said stock to plaintiff to further secure the payment of said bond. It is admitted that said defendants paid on said stock the sum, in accordance with the terms thereof, of $30 per month for the month of February, 1893, and for each and every month thereafter up to and including the month of August, 1896, aggregating the sum of $1,290; that the defendants paid the interest and premium stipulated in said bond for the month of June, 1893. and for eaclJ and every month thereafter up to and including the month of August, 1896. aggregating the sum of, to wit, $975; that also the defendants paid the quarterly dues on said stock, in accordance with the charter and by-laws and the terms of said certificate, up to August, 1896, to wit, the sum of $7.51: each quarter, aggregating the sum of that the defendant George W. Andruss was fined the sum of $18 for failure to pay the installments on said stock promptly, as required by the charter and by-laws of plaintiff, all of which payments are evidenced by defendants' pass book, which is hereto attached, and hereby referred to and made a part hereof. It is further ad· mitted that neither the defendants nor any other person has paid any install· Ulent on said stock, or any monthly installment, interest, or premium on said bond, since the month of August, 1896; that on, to wit, the 28th day of May, 1897, the defendants having failed to insure the house on said premises for the benefit of plaintiff, on said day the plaintiff was compelled to insure said house against damage or loss by fire, for its own protection, in the Scottish Union & National Insurance Company, for the period of one year, and was compelled to pay the sum of $33.75; that plaintiff made demand in writing of defendants in the months of September, October, November, and December, 1896, and January, February, March, April, and June, 1897, for said monthly installments of stock dues which defendants owed plaintiff on said stock for each month named above; that the defendants were tined ten cents on each share of stock held by him, by the directors of plaintiff, for his failure to pay the said stock dues for the months of September and October, 1896, and were fined twenty cents on each share of said stock for the mOl1ths of Xovember and December, 189G, and ,January, February, April, May, and June, 1897, all of said fines aggregating the sum of $54; that by reason of the failure to pay said stock dues as aforesaid, and said fines, the said thirty shares of stOCk, and all moneys paid thereon, were forfeited by the directors of plaintiff company in accordance with article 12 of plaintiff's articles of association, and in accordance with the law of the state of New York which authorizes such forfeiture." The bond referred to in the agreed statement of facts is as follows: "Know all men by these presents, that we, George 'V. Andruss and Hannah Andruss (his wife), of Dublin, in the county of Erath, and state of Texas, are held and firmly bound unto the People's Building, Loan and Saving Association, a body corporate, created and duly incorporated under and in compliance with the laws of the state of 1\ew York, located at Geneva, in the county of Ontario, and state of New York, in the sum of six thousand ($6,000) dollars, lawful money of the United States, to be paid to the asspciation aforesaid. or to its certain attorneys, successors, or assigns. for which payment, well and truly to be made, we do bind ourselves and our heirs. executors, administrators, and assigns, and every of them, firmly, jointly, llnd severally, by these presents. 'Vitness our hand and seals this 18th day of March in the year of our Lord one thousand eight hundred and ninety-three. "Yhereas, the above-bounden George 'V. Andruss is a member and stockholder of the People's Building, Loan and Saving Association, and has received from it, as such member, under the articles of incorporation, by-laws, 941<'.-37
94 FEDERAL REPORTER.
andregultltions of saId association, an advlince to him of :$100 per share upon the value of thirty (SO)shares Of stock;i'n anticipation qf their par value at the time' when such shares shall mature: , NO,I,;, tM condition' of this obllgathat if the above-bounden George W. Andruss, his']ieirs. executors, tion'is administrators, or' assigns,shalL well and truly PaY orclluse to, be paid unto the Sl'lld! tbe PeojJle's Building; Loaniuid ASsOelation, or its certain attorney, successors, or assigns, the just and full sum of three thousand dollars ($3,()OO), In ,the manner following; that 'Is to say, Wrty (SO) dollars contrlbutlonof principal, and tWelve (12)doilars and fifty (50) cents interest, and twelve (12) doiIars' and flftY(50) cents: 'premium, each ari,d every month from the date hereof, for such term as wm secure to the said the ;People's Building, Loan and Saving Association the payment of the full sumo! one hundred dollars on each and everyone of the said thirty shares hereby secured to be paid, such payments to commence on or,before'Saturday, 'March 25, 1893, and to becohtlnued and made on or before the)ast 'Saturday in each month thereafter until the expiration of said term, and also pay all dues, fines, and penalties that may be Imposed upon the said George W; Andruss as a member of said association, pursuant to the artlc;les of association and by-laws thereof, of said association at Geneva. all 'of which are to be paid unto the N. Y.,lthdkeep the obligations hereinafter contained, 'without fraud or delay, then thisobllgation to be void, otherwise to, remain full force and virtue. And It ill' hereby expressly'agreed that shouid any default be made in the payment of any instalhtient of principal, or any part thereof, or any interest or ,premium moneys, or any parttlieredt, hereby secured to be paid, or any dues, fines, or penalties imposed as "aJ'6resll.id, orin the' payment of the taxes" assessments, and insurance as he"MiraIter provided, and should the unpmd and In arrears "for/the space or: three months after the same,shall have become 9.ue and.1Jayaqle, that then and in that case the whole 'principal sum hereby secured' to be paid,together with the Interest "and premium thereon, shall ';1:iecome due and payable immediately thereafter, ,although the period above limited for thereof may not have l!xpired, herein contained, to the contrilrynotWlthstanding; s,nd lHsfurther agreed that the said of the first part shall Day a reasonaple attorney'!'! fee, in case suit Is brought to enforce the conditions of this instrument. 'And 'it is furt):J.er agreed by and between the parties to these preSetlts thaHhe said parties of the first part shall andwfllkeep the buildings erected' and to be erected on the lands described in the. 'trust deed herewith and collateral hereto, Insured against loss or damage by fire, by solvent Insurers, lmd in an amount of at least three thollsand ($3,000) dollars, and approved by said party of the secoDdparf, and assign the policy and certificate thereof to said, party of the second part. its successors or assigns, and in, default thereof it'shall be 'laWful for said party Of the second part to et'fectsuch Insurance, as mortgagee or Otherwise, and the premium or premiums 'paid' for effecting and continuing the: same shall beB: lien on said premises, added to the amount secured by these presents. alid payable on demand, with interest at the rate of six. per ,*nt. per aunum. ,.; · · It is further agreed by and between the parties to thes ll presents that this Instrument is made under and controlled by the iaws of ,the state of New York. In witness Whereof, the parties of the first part have hereunto set their hands and seals the:fiay and year first abOve ' George \V. 'Andruss. [Seal.] "Hannah Andruss. [Seal.]" The deed of trust referred to in the bond wall offered in evidence. It is dated March 18, 1893, executed by said defendants Alidruss and wife, and E. A. Walton is made trustee. It conveys the property described In the decree. It refers to the real estate conveyed as being the "same 'premises conveyed to George W. Andrussby T. C. Hill, agent." It contains 'clanses "releasing and waiving all rights under and by virtue of the homestead exemption laws of the state of Texas, and. all rights of dower.'" It states the loan of $3,000, the payments to be made, and states that "they are to be paid unto the treasurer of said association,' at Geneva, New York, according to the conditions of a bond this day executed and delivered by the said George W. Andruss and Hannah Andruss. · * *" The deed of trust also contains this provision: "And it Is expressly
ANDRUSS V. PEOPLE'"
LO.-'lN & SA VING ASS'N.
agreed and understood that tbis instrument is made under and controlled by the laws of the state of The by-laws of the appellee were in evidence. Article 16 is as follows: "AILremittances for admission, monthly and quarterly installments, fines, penalties, interests, and premiums, and all other shall be made to the secretary of the association, at their principal office, in Geneva, N. Y." The circuit court rendered the following decree: "April 18, 1898. "On this day came on said cause to be heard before the United States circuit [court], at a regular term thereof, at Waco, Texas, and the solicitors for plaintiff and for each of the defendants in said cause being present and having announced 'Ready for trial.' and it appearing to the court that at a former day of the present term of this court the case of Hannah Andruss and George W. Andruss v. The People's Building, Loan & Saving Association (No. 43 in equity) in this court was by motion consolidated with the above-entitled cause 28 in EquitY),-People's Building, Loan & Saving Association v. G. W. Alldruss et al.,-and the issues and the parties in said two suits Nos. 43 and 28 being identical, after hearing the evidence and argument of counsel, are disposed of as follows: The court orders and decrees that the plaintiff, the People's Building, Loan & Saving Association, a corporation, do have and recover of and from the defendant George W. Andruss the sum of $3,828.75, amount of principal, interest, premium, and attorneY's fees due on the bond sued on, and $33.75 paid as insurance premium with interest thereon at the rate of 5 per cent. per annum from the date hereof, together with all costs of suit. It Is further ordered and decreed by the court that plaintiff's deed of trust lien executed by defendants, George W. Andruss and wife, Hannah Andruss, on the 18th day of March, 1893, to secure said sums of money, on the north half of lot ten (10) in block six (6) of Bishop's addition to the. town of Dublin, in Erath county, Texas (and for a further description of said premises reference is hereby made to said deed of trust, which is dUly recorded upon the Deed of Trust Records of Erath County, Texas, in volume H, at pages 487 to 494. filed for record March 18, 1893), be, and the same is hereby, foreclosed on said premises, against all the Andruss right, title, or interest of each and all of said defendants, George and Hannah Andruss, in and to said premises. It is further ordered that unless the defendants pay to the clerk of this court for the satisfaction of this decree the full amount of said decree, and all interest due thereon, within thirty days from the date hereof, it is ordered that said property be sold under an order of sale issued by this court as herein directed at public vendue at the courthouse door of Erath county, Texas, to the highest bidder, for cash, for the satisfaction of said decree in flivor of plaintiff. and the court hereby appoints Thomas P. Martin commissioner to sell said property. And it is ordered that said commissioner shall give public notice of the date and place of such sale of said property by causing notice of such sale to be published once a week for at least four weeks prior to such sale In at least one newspaper, prluted regularly, issued and having a general circulation in the county of Erath, and said state of Texas; that such notice shall describe said property, and give the date and place of such sale. And said commissioner is ordered to make a written report of such sale, at the earliest time practieable thereafter, to this court. And. upon confirmation of said sale by this court, the proceeds of such sale, or so much thereof as may be necessary, shall be applied to the satisfaction of said decree in favor of plaintiff as aforesaid, and the halance, if any. shall be paid over to defendant Hannah Andruss; ana, should said property fall to sell for sufficient to payoff said decree, and all costs in this behalf incurred. then it is ordered that, after the confirmation of such sale, execution shall issue against said George W. Andruss· for the balance due plaintiff on said decree, and after confirmation of said sale the said commissioner shall convey said premises, by warranty deed, to the purchaser thereof, and said purchaser shall have his writ of assistance at once to get possession thereof." The other facts necessary to an understanding of the case are stated in the opinion. . George W. Andruss and Hannah Andruss appealed from the decree of the circuit court. The assignments of error are based on the said decree.
F. 'E. Dycus and W. S. Essex, for appellants· . Prnit, for· appellee. Before McCORMICK, and SHELBY, (jircuit Judgea.
SHELBY, Circuit Judge. 1. The debt which is the.subject of this suit is proved by a bond which is secured by a mortgage. The appellants, who are the obligors in the bond and the mortgagors in the mortgage, are citizens of Texas. The appellee, who is the obligee'in the bond and the mQrtgagee in the mortgage, is a New York corporation. Both the bond and the mortgage are made paytble at Geneva, in the state of New York. The by-laws of the appellee corporation provide that all payments be made to the 3ecretary of the association, at Geneva, N. Y.The appellee corporation is a. building and loan association orgaI,lized pursuant to statutes of the state of New York, and both the bond and the mortgage contain a stipulation that it is to be governed by the ',aws of that state. In view of all these facts, we hold that the .in question are not usurious, if they are valid under the laws of the state of New York, the place of performance., Andrews v. Pond, 13 Pet. 65-78; Association v. 14 C. C. A. 133, 66 Fed. 827; Miller v. Tiffany, 1 Wall. 29S; Sturdivant v. Bank, !) C. C. A. 256, 60 Fed. 730; Dugan v. Lewis, 79 Tex. 14 S. W. Association v. Tinsley (Va.) 31 S. Eo 50S. 2. It is not necessary, as claimed by the appellants, to offer evidence Of the public statutes of another state. The United States courts sitting in Texas will take judicial notice of the public statutes of New York. Owings v. Hull, 9 Pet. 607; Gormley v. Bunyan, 138:D. S. 623, 11 Sup. Ct. 453. 3. While it is true, as claimed by appellants, as a general propotlition, that contracts in New York for more than 6 per cent. interest are .usurious 'and void, yet an exception is made by statute of building and loan associations, or at least it is provided that premiums for loans may be paid such associations without a violation of the usury laws. The following is the statute:
"No holder of redeemed shares shall claim to be exempt from making the monthly payments provided in the articles of association, upon the ground that ,by reason of losses or otherwise the association has continued longer than was originally anticipated, whereby the payments made on 8uchshares may amount to more than the amount originally advanced, with legal interest thereon; nor shall the Imposition of fines for non-payment of dues or fees, or other vIolation of the articles of association. nor shaH the making of any monthly payment .requlred by theartlcles of association, or of any premium for loans made be deemed a violation of the provisions of any statute against to usury." 1 Rev. St. N.Y. (4th Ed.) p. 1290; Laws N. Y. 1851, c. 122. § 7.
This statute prevents the contracts between the parties from being. usurious under the general statutes. Association v. Read, 93 N. Y. 474. 4. The claim of the appellant George W. Andruss, that he is entitled to credit on his bond for borrowed money on account of the payments he made on his subseription for stock, cannot be sustai.ned. He was a subscriber for' stock in the associa.tion, and he was under contract to pay for it, just as any other stockho1<lex.
Payments on the stock, his stock being forfeited under the rules of the association, cannot be applied to his debt on account of the loan, Blakeley v. Association (Tex. Oiv. App.) 26 S. W. 292; Association v. Logan (Tex. Oiv. App.) 33 S. W. 1088. 5. On the 3d day of March, 1893, the appellants both signed a writing designating certain real estate as a homestead, and concluding with this statement:
"And we do hereby exempt from the operation of the homestead law, and do disclaim any homestead right in and to, the north half of lot number ten in block number six of Bishop's addition to the town of Dublin."
This instrument was duly recorded. George W. Andruss testifies that:
"The purpose of executing said instrument was to enable me to procure the loan on said property. * * · My purpose in getting the money was for the purpose of improving said property."
He admits that he vacated the propert,r, but he says this was only temporary, for the purpose of allowing the building to be erected. He further testifies:
"Myself and wife executed and recorded the instrument [the homestead disclaimer] in good faith, and it was our intention to relinquish our homestead right in the north half of lot ten, in said instrument."
Having executed this relinquishment to secure the money, the defendants offer to repudiate it in defense of a suit to collect the money. This cannot be permitted. In the case of Jacobs v. Hawkins, 63 Tex. 3, the supreme court of 'fexas said:
"In cases in which property has not been used as a homestead, 01' is not so used, the declarations of a husband would seem to be admissible for the purpose of showing that there was no intention so to use it as to make it the homestead; and this would seem to be true where a place formerly used as a homestead is not longer occupied. and so for the purpose of indicating an intention never again to use it, which, coupled with the act of removal, would amount to an abandonment."
Another case which is analogous to the one at bar is Kempner v. Comer, 73 Tex. 202, 11 S. W. 196. The owners were improving the property for the purpose of making the same the business homestead, but had not sufficient means to complete the improvements; and, in order to pro,cure a loan on the property to make the im. provements already begun. the husband and wife executed a renunciati,on, renouncing all homestead interest in the property. The supreme court said:
"But the parties claiming homestead expressly abandoned and renounced their intention to occupy and nse the premises as a homestead before it was so used, and this renunciation was made, not by mere declarations, but in the solemn form of a deed, the wife joining; and all this was done in order to include the vroperty in the deed of trust then being made to secure advances and borrowed money. In snch case the law will give effect to the renunciation. There was in fact no homestead in the premises when renounced."
The renunciation, as this case shows, would have no effect if the premises had really been occupied as a homestead, and if the renundation had only been made to avoid the effects of the homestead laws. But here the appellant Andruss testifies that the relinquishment was in good faith, and the evidence shows an actual abandon-
94 FEDERAL REPORTER :::'r:
as a busip.ess homestead. The money having beeu J.'e,sen.ta,t,i,on that". <t,' he as, .a homestead" havmg been used to build the lot, It would be' manifestly inequitable 'to allow the homestead t? ge. now defeat the "of trust. ' The judgment of the CIrcUIt court 18 affirmed. ",
me.nt of ,the
COOPERet a1. v. HILL. (Circuit Court of Appeals, 'Eighth Circuit.
No. 1,145. 1.
May 9, 1899.)
LIMITATION OF AVTIONS-AcCRUAL OF CAUSE OF AC'l'ION.
A cause of action against the directors of a bank for fraudulently diverting its funds for their own benefit accrues as soon as the diversion is complete, in the absence of concealment of the facts on their part; 'and where suchfilcts, are shown upon the records, of the bank, and, become lmown to a cashier ,who succeeds the one Involved in the transaction, and who has no interest'in the matter adverse to the bank, his knowledge is notice to the bank. A national bank whicp has lawfUllY acquired the title to property in payment of a debt has implied to make reasonable repairs thereon for the purpose, of putting it in salableconclition, and its directors cannot be held personally liable, for money so expended in good faitp..
2. NA'l'IONAL BANKS:-REPAIRS OF PROPERTY ACQUIUEI)-PERSONAI, LIABILITY OF DIRECTons.
SAME-PnosECUTIO'S OF OUTSIDE BUSINESS,
A national bank, however, has no 'power to prosecute a mining business on property which it has acqulted,-much less, to expend its funds in prospecting for mineral on sueh property; and directors, who authorize such expenditure are personally liable'therefor to the bank or Its receiver.
4. SAME-Snn' AGAINST DIRECTOlIS-"-JURlsDIC'fION OF EQUI'l'Y.
A suit by the receiver of an insolvent national bank against its officers lJ.nd directors to compel restitution of funds unlawfUlly diverted by them is one to execute a trUst,' and involves an accounting as to trust funds. and hence is of equitable cognizance.
Fl. SAME-JOIN'r LIAUIl,ITY. "
When a loss has been caused to a national bank, by the appropriation of its funds to a purpo.<;e unauthorized by law, or by culpable or conversion of its funds, the officers, who participated in or consented to the act are jointly'and severally liable for the entire amount.
SAME-FAILURE 'ro PROVE ALLEGA'l'ION OF FRAUD.
A bill by the receivl':r of a national bank against its officers and directors for the unlawful diversion of funds of the bank is sufficient to support a recovery" when the diversion is proved, although a further allegation that such diversion was fraudulent is not proved. The gravamen of the bill is the fact of, unlawful diversion. When the directors and officers of a bank have misappropriated its funds, they are lia.ble for interest on the amount from the date of the misappropriation,asdamages; and no statute is 'necessary to authorize the allowance of such i.nJerest by a court of equity.
1:1. SAME-SUIT AGAINST DIRECTORS-LACHES.
Theqirectors of a national bank are not trustees of an express trust. withr'esPeC't'to the property or funds of the bank, but of an implied or resulting trust created Uy the operation of the law upon their official relatlon to the bank; and of limitations and the doctrine of laches may 'bll invoked in their defense, when sued for a breach of such trust. Such an action is at law or ill. equity, and a court of equity