162 Wis. 216 | Wis. | 1916
The following opinion was filed December 7, 1915:
The appellants insist that the court erred in holding that the commissioner of banking or the trust company was liable for rent to Goetz or Rogers or the MarJcwells, and, as subsidiary to this, in deciding (1) that the leasehold estate of the trust company became the property of the bank commissioner; (2) that the commissioner occupied the premises under the lease; (3) that Goetz had authority to deliver the possession of the leased premises to Rogers; (4) that Rogers succeeded to the rights of the trustee in bankruptcy; (5) that Rogers ever had been in possession of the premises; (6) that the right to offset indebtedness due from the Clark Realty Company to the trust company against the rent claimed did not exist; and (7) that $2,500 per year was a reasonable and fair rental for the promises occupied by the commissioner.
The commissioner of banking took possession of the property and assets of the Citizens Savings & Trust Company pursuant to the provisions of sec. 2022, Stats. Among other things, sub. 1 of that section authorizes the commissioner, whenever it shall appear that any bank is conducting its business in an unsafe or unauthorized manner or that its capital is impaired or that it is unsafe or inexpedient for it to continue business, to forthwith take possession of the property and business of such bank and retain such possession until the corporation shall resume business or its affairs be finally liquidated. Sub. 2 requires the commissioner to give notice of the fact that he has taken possession of the assets of the bank. Sub. 3 provides that, upon taking possession of the assets and business of the bank, the commissioner is authorized to collect moneys due to such bank and to do such other things
Tbe abstract question of tbe liability of tbe commissioner for rent of tbe premises held by him, or for use and occupancy thereof, is not involved in much doubt. Tbe lease may have been either an asset or a liability of tbe trust company. It was its property in any event and nominally an asset wbicb tbe commissioner took with tbe other property. He might repudiate it or treat it as an asset. There was no repudiation. He was obliged to have some place in wbicb to transact tbe large volume of business necessarily incident to tbe liquidation of tbe affairs of tbe insolvent. It was just as necessary that be should have space in wbicb to transact that business as it was that be should have employees to assist him in transacting it. He could not do tbe work on tbe street corners nor on tbe housetops. For reasons satisfactory to himself be elected to occupy thé former quarters of tbe trust company, and just why be should not be compelled to pay for tbe use of tbe premises as part of tbe expense of administration
There are cases which bold that tbe officer in charge is liable for tbe reasonable value of the use of tbe property, and not tbe sum stipulated in tbe lease. Stoepel v. Union T. Co.
■ The decided weight of authority, however, is to the effect that the rent stipulated in the lease fixes the measure of liability, and we deem this to be the correct rule.
. The cases cited did not involve bank commissioners acting under statutes like ours, but dealt with the liability of receivers of insolvent corporations, trustees in bankruptcy, and the like. Appellants argue that the obligations of such are different from those of the bank commissioner, who is a state officer performing statutory duties and subject to statutory liabilities only. We neither accept nor reject this somewhat narrow view of the duties and functions of the commissioner. Conceding them to be correct, he has under the statute the power, and it is, we think, his duty, to provide a place in which to transact his business where the insolvent does not own one, and it necessarily follows that the expense thereof is one of administration for which the commissioner is just as much liable as would be a receiver or trustee in bankruptcy. Whether the cases be strictly on all-fours with the one before us or not, they deal with analogous situations. The law implies a promise to pay for the use of room which was necessary for the transaction of the business which the commissioner was called upon to transact.
Taking up the other contentions of the appellants, the time for which rent was allowed should be divided into three periods: first, from October 2, 1913, when the commissioner took over the property of the trust company, to February 2, 1914, when the landlord, the Clark Realty Company, was adjudged a bankrupt; second, the period from February 2, 1914, to June 30, 1914, at which latter date the trustee in bankruptcy of the lessor elected to surrender possession .of the
When the banking commissioner took charge of the insolvent trust company there was due the latter on open account from its landlord $2,186.14. There was also a mortgage indebtedness amounting to $'73,500, falling due in 1915, on which interest had been paid to May 1, 1913. Thereafter the semi-annual instalments of interest were not paid. There became due on account of interest the stun of $1,837.50 on November 1, 1913, and a like sum every six months thereafter, as we understand the testimony.
The appellants insist that they had a right to offset these1 sums against any rent that might be due the lessor or its successors in interest, and that this right of setoff is superior to the right of all of the parties who are seeking to compel the payment of rents. The commissioner and the insolvent trust company filed their claim on open account against the Clark Realty Company in the bankruptcy proceedings involving that company. The proof of claim which was verified by the joint claimants stated that the amount claimed was due over and above all setoffs. The trial court was of the opinion that the claimants elected to claim the entire indebtedness in the bankruptcy court and had therefore waived their right to make the offset now claimed. Conceding this to be true as to the claim on open account, we do not see how it can affect the right of offset against the sums due for interest. The Clark Realty Company was entitled to the rent which accrued up to February 2, 1914, when it went into bankruptcy. At this time it was owing the trust company over $1,800 interest money. If the trust company was solvent there would be no doubt about the right to make the offset. Jones v. Piening, 85 Wis. 264, 55 N. W. 413; Pendleton v. Beyer, 94 Wis. 31, 68 N. W. 415; Merchants' Exch. Bank v. Fuldner, 92 Wis.
As to rents accruing after the Clark Nealty Company went into bankruptcy, it would seem clear that the right of offset did not exist. The rights of its creditors then became fixed, and they were entitled to have the rents accruing thereafter impounded by the trustee in bankruptcy so that the same might be applied in settlement of their claims. Johnston v. Humphrey, 91 Wis. 76, 80, 64 N. W. 317; Oatman v. Batavian Bank, 77 Wis. 501, 503, 46 N. W. 881; Jones v. Piening, supra; McLaughlin v. Winner, 63 Wis. 120, 23 N. W. 402; 1 Loveland, Bankruptcy (4th ed.) § 320. The trustee of the bankrupt became vested with its title and right of possession in the Pereles Block. Sub. 5, sec. 70, Bankruptcy Act; Collier, Bankruptcy (10th ed.) pp. 1004, 1005. The trustee had a reasonable time in which to decide whether this block was an asset or a liability. It was his duty to take it over with the other assets of the bankrupt. If satisfied, after a full investigation, that the interests of the creditors whom he represented would best be subserved by abandoning the property, he might, with the consent and approval of the court, do so. In the meantime he was obliged to supply fuel, provide janitor service, make necessary repairs, and to assume a part of the obligations incidental to ownership, and it is pretty clear that he was entitled to the rents so long as he elected to take and retain possession of the property in the interest of the creditors whom he represented. To hold that his surrender of possession related back to the time he took it would cast upon the bankrupt estate the burdens of maintenance while possession was held without participation in the benefits, which would be manifestly unfair to the creditors of the Realty Company. Equitable L. & S. Co. v. R. L. Moss & Co. 125 Fed. 609; In re Frazin, 183 Fed. 28.
This court has frequently held that when a mortgagee obtains peaceable possession of mortgaged property he may retain such possession until his mortgage debt is paid. Hennesy v. Farrell, 20 Wis. 42; Stark v. Brown, 12 Wis. 572; Gillett v. Eaton, 6 Wis. 30; Tallman v. Ely, 6 Wis. 244; Brinkman v. Jones, 44 Wis. 498, 512. If this right of possession does not carry with it the beneficial use of the mortgaged property it is a barren right indeed, and we hold that peaceable possession carries with it the right to collect rentals although the rentals themselves are not specifically mortgaged.
It was said in Schreiber v. Carey, 48 Wis. 208, 214, 215, 4 N. W. 124, although not essential to a decision in the case, that a mortgagee in possession was entitled to apply the rents and profits which can be derived from such possession to the discharge of his debt. The cases are generally to the effect
As to the Marhivells the situation is this: The Pereles Company had a ninety-nine-year lease of this interest, which passed to the Clark Realty Company by a warranty deed covering the leased premises. The Clark Realty Company becoming insolvent, its interest in the leased premises became vested in its trustee in bankruptcy. Such trustee, not considering the interest of the insolvent in this property to be an asset, abandoned it and turned the possession of it over to the trustee of the mortgage. The trustee in the mortgage, acting in behalf of the bondholders whom he represents, has elected to claim no interest in that part of the mortgaged premises covered by the ninety-nine-year lease, and in turn surrendered the possession of the property covered by this lease to the owners on August 1, 1914. So there is no one in existence from whom the Marhwells can collect anything for the use and occupancy of their premises except those who are actually occupying them, unless it be the Citizens Savings & Trust Company, now bankrupt, who is the assignee of their lessee, the Pereles Company. If this latter is their only remedy, then they may have no remedy at all except foreclosure and eviction. The Marhwells,'however, are the owners of the premises and have all the possession and right of possession which inheres in a landlord, and we think they are entitled to either the rent stipulated in the existing lease to the trust company or to the reasonable value of the use and occupancy of the premises, which in this case, under the findings of the court, amounts to the same thing. The finding that the premises occupied by the commissioner were worth
A question of jurisdiction is also raised. It is said that the liquidation of the business of an insolvent bank under sec. 2022 is not a proceeding in or under the direction of a court, but an administrative proceeding carried on by a state officer who is empowered and directed to refer certain legal questions arising in the course of administration to the courts. This contention, if correct, does not prevent the courts from entertaining jurisdiction of an action against the commissioner to recover a debt for which he is legally liable and which he refused to pay. No action was brought in the present instance, the respondents having proceeded by petitions in the liquidation proceedings in the circuit court. The appellants answered such petitions, and the issues raised were without objection tried on the merits. The court certainly had jurisdiction of the subject matter of this controversy over rent, and the parties by their voluntary appearance conferred jurisdiction over their persons. However broad the powers of the banking commissioner may be, his decision that he does not owe a just claim made against him is not final.
As to the respondents Rogers and the MarJcwells the order appealed from is affirmed. As to the respondent Goetz the order appealed from is modified by reducing the recovery from $1,868.13 to $1,027.77, and as so modified the order is affirmed. Costs are allowed to the respondents Rogers and the Marhwells. Costs are allowed in favor of the appellants and against the respondent Goetz for one half of the taxable disbursements on the appeals and $25 attorneys’ fees.
By the Court. — It is so ordered.
A motion for a rehearing was denied, with $25 costs, on Eebruary 1,1916.