113 Neb. 408 | Neb. | 1925
This is an action originally brought by the Bank of Cass County to subject the real estate hereinafter described, the title to which at the commencement of the action was standing in the name of W. A. Robertson, to the payment of a certain indebtedness growing out of notes of ,J. H. Mc-Maken due to it. The Nehawka Bank of Nehawka and the
The facts are as follows: On or about September 16, 1918, J. H. McMaken executed and delivered a warranty deed, absolute in form, conveying lots 1, 2, 3, and 4, in block 22, city of Plattsmouth, to Charles C. Parmele, the consideration mentioned in the deed being $55,000, that amount being approximately the indebtedness of McMaken to the Bank of Cass County, the Nehawka Bank of Nehawka, the First National Bank of Plattsmouth, and the Pacific Junction Bank. Upon the indebtedness held by the Nehawka Bank and the First National Bank, Parmele or the Bank of Cass County, or both, admitted liability as if indorsers of the notes. Parmele was at that time the president of the Cass county bank. The possession of the property conveyed remained in McMaken, and the deed, in effect, was a mortgage to secure the indebtedness mentioned. On April 28, 1921, McMaken remained indebted to the Bank of Cass County upon four promissory notes aggregating with interest the sum of $17,919.57. At the same time he was indebted to the Nehawka Bank, on a note transferred to it by the Bank of Cass County, in the sum of $5,000 and interest, the interest on May 16, 1921, amounting to $326.56. He was also indebted to the First National Bank on a promissory note transferred to it by Charles C. Parmele in the sum of $5,000. During all of this time Parmele had been president or director of the Cass county bank. Prior to April 28, 1921, Parmele was required by the department of trade and commerce of the state to take out of the Cass county bank enough of the McMaken notes to reduce its
The real estate in controversy was conveyed and possession thereof delivered to Parmele in June, 1921. The consideration to McMaken, which passed when the deed was delivered, was the return to him of all his notes, including those held by the Nehawka Bank and the First National Bank, as well as those in the Bank of Cass County, and, in addition, there was an agreement requiring Charles C. Parmele to convey to W. A. Robertson the real estate in question, which was taken by him, charged with the indebtedness of McMaken to the Bank of Cass County and First National Bank. Active fraud is nowhere shown or suggested in this transaction. The consideration comes from the three banks, and the transfer to Robertson brings the case clearly within the rule heretofore announced by this court. The consideration for the conveyance of the land by McMaken to Parmele was the cancelation of his indebtedness to the banks, and while the title was taken in the name of Parmele it was held for the benefit of the banks, and Parmele at no time claimed the property as his own. He was then president of the Bank of Cass County, through whom the indebtedness held by the other banks was negotiated, and his conduct throughout the series of transactions is entirely consistent with the conditions stated. The representatives of the vari
The appellants urge the statute of frauds'in their own behalf and against the recognition of a trust in favor of the receiver and the banks. The statutory provisions applicable are as follows: “No estate or interest in land, other than leases for a term of one year from the making thereof, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by operation of law, or by deed of conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same.” Comp. St. 1922, sec. 2451. “The preceding section shall not be construed to affect in any manner the power of a testator in the disposition of his real estate by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law.” Comp. St. 1922, sec. 2452. These sections have been before this court frequently for application and construction and it has been held:
“The statute of frauds does not render a contract void, but voidable at the option of either party. But it does not require a party to ignore considerations of moral obligation, equity, and good faith, by pleading the same; and a creditor cannot do so.” Cresswell v. McCaig, 11 Neb. 222; approved in First Nat. Bank v. Blair State Bank, 80 Neb. 400. See, also, Rickards v. Cunningham, 10 Neb. 417; Happ v. Ducey, 110 Neb. 429; Greusel v. Payne, 107 Neb. 84.
So far as the appellants are concerned, this is not an ■action to enforce a trust against a resisting trustee. If it were, many of the authorities they cite would be in point. But in this case both Charles C. Parmele and W. A. Robertson were, at all times material to this controversy, directors nf the Bank of Cass County. “The rule is thoroughly imbedded in the general jurisprudence of both America and England that the status of directors is such that they occupy a fiduciary relation toward the corporation and its stockholders, and are treated by courts of equity as trustees. '* * * The fiduciary relation is so vital that directors are not only prohibited from making profit out of corporate ■contracts, and from dealing with the corporation except upon the most open and on the fairest terms, but the rule of accountability is so strict that they are not permitted to anticipate the corporation in the acquisition of property reasonably necessary for carrying out the corporate purposes or conducting the corporate business.” 2 Thompson, Corporations (2d ed.) secs. 1215, 1246. See Nebraska Power Co. v. Koenig, 93 Neb. 68. And if, as between the corporation and the director, strict accountability is so required, where the directors, as in this case, are both endeavoring to perform their duties consistently and honestly, private creditors of one of them will not be permitted to interfere with the performance of the duty so imposed and sought to be performed.
The decree of the district court is correct, and is
Affirmed.