164 A. 881 | Conn. | 1933
This is an action brought by the plaintiff as receiver of The Broadway Bank Trust Company, a state bank located in New Haven, to recover a payment made to a depositor which is claimed to be void under the provisions of § 3933 of the General Statutes which reads as follows: "All payments or conveyances made by any such bank or trust company in contemplation of insolvency, to or for the use of any or all its creditors, with the fraudulent intent to prevent the distribution and appropriation of its effects in the manner prescribed by section 3935, shall be void." Section 3935 provides that the avails of the property of an insolvent bank or trust company in the hands of a receiver shall be appropriated ratably to the payment of various claims in the order specified therein.
From the finding, which is not subject to any material correction, the following facts appear: The defendant Treat was treasurer of The Broadway Bank *337 Trust Company and the defendant Manning, who is his mother-in-law, had an account of $500 in the savings department of the bank which was carried under the heading "Carrie Manning, R. V. Treat, Agent," the pass book being in the possession of Treat, who had authority to sign withdrawal orders and manage the account. The bank became insolvent in December, 1931, and on Thursday, December 17th, a serious "run" started on the bank which continued on Friday, Saturday, Monday and Tuesday. On Tuesday, December 22d, at ten minutes of three, no funds remained in the bank, payment was suspended and by order of the bank commissioner the bank did not open on the following day, and the plaintiff was subsequently appointed receiver.
On Sunday, December 20th, Treat visited Mrs. Manning, who told him she had read about the "run" on the bank, requested him to look out for her money which she did not wish "tied up" in the event the bank failed, and told him to withdraw it. Treat did not withdraw the money on Monday, but on Tuesday afternoon, after he had learned that the bank was about to close, he directed a teller to bring $500 and a withdrawal order to his private office and not to say anything about it, and thereupon withdrew the $500 and closed the account. At this time there was a good deal of excitement in the bank and a large number of depositors were in line waiting to make withdrawals at the regular windows, many of whom were unable to procure their funds before the bank suspended payment. Treat knew that the bank was insolvent and was about to close when he made the withdrawal which he made as agent and treasurer of the bank and as agent of Mrs. Manning.
The trial court held that the withdrawal was not made in the ordinary course of business, that it was *338 a payment made in contemplation of insolvency and with intent to prefer Mrs. Manning over other creditors and was void under the terms of the statute.
Preferential payments by an insolvent bank or trust company to creditors are not void or voidable at common law in the absence of a secret trust for the benefit of the debtor; Cosmopolitan Trust Co. v. S. L. AgoosTanning Co.,
The trial court's conclusion that the withdrawal of this deposit by Treat was made in contemplation of insolvency was justifiably based upon its finding that he knew that the bank was insolvent and that it was about to close. The finding also supports the conclusion that the withdrawal was made with intent to prefer the depositor, Mrs. Manning. In making the withdrawal Treat was acting both as an official of the bank and as agent for his mother-in-law, Mrs. Manning. His knowledge as such agent was her knowledge.Lane v. United Electric Light Water Co.,
The statute invalidates a payment made with "fraudulent intent" to prefer. In a preferential transfer the fraud is constructive or technical, consisting in the infraction of the rule of equal distribution among all creditors, which it is the policy of the law to enforce when all cannot be fully paid. In a fraudulent transfer the fraud is actual — the bankrupt has procured an advantage for himself out of what in law should belong to his creditors, not to him. In re Maher, 144 F. 503, 509; Coder v. Arts,
The action sounds in tort, and the defendant Treat, though acting as agent, actively participated in the commission of the tort, and judgment was rightly rendered against both defendants. Semple v. Morganstern,
There is no error.
In this opinion the other judges concurred.