76 Ind. App. 150 | Ind. Ct. App. | 1920
It appears from the record in this cause, that on June 7, 1915, appellee McDermid was appointed receiver of the Crozier-Campbell Sales Company, hereinafter called the sales company, and soon thereafter qualified.and took upon himself the execution of said trust; that among the assets then in the possession of said company, and which came into the hands of said McDermid as such receiver, was a certain Empire automobile, which he afterwards sold; that subsequent to said sale appellant filed an intervening petition in said receivership, in which it asked that the proceeds derived from said sale be applied to the payment of the bálance due it on a certain promissory note, for the security of which appellant claimed said automobile had been pledged. On July 12, 1917/the court, after a hearing on said petition, and in pursuance of a timely request by appellant, made a special finding of facts, in which it found in substance, among other things, that on May 29, 1915, Raymond L. Crozier and Herbert E. Campbell, as partners doing business as the Crozier-Campbell Sales Company procured a loan of appellant in the sum of $500.; that to evidence the same they executed to appellant their promissory note for said sum, due sixty days after date; that for the purpose of securing said note, and as a part of the contract under which said loan was made, said sales company, concurrently with the execution of said note, pledged to appellant, by an instrument in writing (a copy of which is made a part of the special finding), a certain new Empire automobile, numbered 332408; that concurrently with the execution of said instrument, and as a part of the transaction in which said money was loaned, the said Crozier and Campbell executed to appellant the following ac
“Indianapolis, Ind., May .29, 1915.
“Received from the Fletcher American National Bank of Indianapolis, New Empire Car No. 332408, in trust, to be handled by us, its agents, and accounted for to its satisfaction.
“Crozier-Campbell Sales Co. Per H. E. Campbell.”
That concurrently with the execution of said instrument of pledge, and said acknowledgment of trust and agency, said sum of $500 was received by said Crozier and Campbell for their own use; that said form of collateral agreement was one which had been in use by appellant in its business with respect to all kinds of collateral for a long time, and similar forms were in general use in the banks in the city of Indianapolis; that all of said papers were executed and said transaction was had in good faith without fraud, or fraudulent intent, by any of the parties thereto; that said automobile so pledged was not held by said sales company for sale, but was held for demonstrating purposes in the sale of other cars; that on June 7, 1915, upon application of one of said partners in an action against the other, a receiver was appointed for said copartnership; that said receiver, without notice to appellant, took possession of said pledged automobile, and sold the same for $675; that there was a conditional sale contract outstanding against said automobile, on which there was due the sum of $407.91, and which amount the said receiver was compelled to pay, in order to secure its release therefrom; that at the time the price for which said automobile was sold was paid to said receiver he knew of said agreement with appellant; that on June 8, 1915, there was on deposit with appellant to the credit of said sales-company the sum of $216.29, which amount on said date was applied to the payment
'“Upon the foregoing facts the Court concludes the law to be that the pledge was a valid one and that the petitioner Bank had a special property in said automobile to the extent of the balance of its debt, and that on sale of the automobile being made the claim in equity was transferred to the money received by the Receiver and is a charge and lien thereon, less the amount necessary to discharge the prior claim, to wit: $407.91, and that the sum of $267.09 in his hands is the property of the petitioner, and should be paid over to it, and that judgment should be accordingly rendered.
“It is therefore considered and adjudged and decreed by the Court that the petitioner Fletcher American National Bank'had a special property in said automobile and that the lien of said petitioner be and the same is hereby transferred from said automobile to the said sum of $267.09, and that said Receiver be and he is hereby directed to pay to said petitioner the said sum of $267.09 in his hands.”
“And the Court now sustains the motion of the Receiver to set aside the conclusions of law heretofore made herein in so far as it concludes that the intervener has a prior or preferred claim against the fund arising from the sale of the automobile in controversy, and restates its conclusions of .law on the special findings, that the balance due the intervener constitutes a valid general claim against the funds in the hands of the Receiver.
“It is therefore considered and adjudged by the Court that the intervener, Fletcher American National Bank, have and recover out of any funds in the hands of the Receiver applicable thereto, the sum of $283.21, with interest at 6 per cent per annum from July 1, 1915, and the same shall be payable as other general claims against said trust are payable.”
The court also overruled appellant’s exceptions to the receiver’s report and entered an order approving the same. Appellant filed a motion for a new trial which was overruled, and it now prosecutes this appeal- on an assignment of errors which requires a consideration of the questions hereinafter determined.
Appellant contends that the special finding of facts shows that it had a lien on the automobile in question, and for that reason it was entitled to have the net proceeds in the hands of the receiver derived from the sale thereof, applied to the discharge of such lien. Based on this contention, appellant as
Moreover, we entertain serious doubts if such a purpose would fall within the rule stated. The adoption of appellant’s contention, that a pledgee of property, the possession of which can be as readily delivered as an automobile, may avoid an actual delivery thereof by appointing the pledgor his agent to hold possession for him, w.ould be to render nugatory one of the recognized essential elements of a pledge, made necessary to prevent fraud and deception. As said in the case of Fourth Street Nat. Bank v. Taylor, supra, “ ‘To hold that exclusive possession may be retained by the debtor provided he agree to hold as trustee, until the same is demanded by his creditors or until default is made, would be to permit that to be' done secretly and by indirection which the law condemns when' done directly and openly. This principle is so
However, it is well settled that where a contract for a pledge fails for want of a delivery of the article agreed to be pledged, such contract nevertheless creates an equitable lien, which is valid as between the parties. 31 Cyc 797; 21 R. C. L. 642; Davis v. Billings (1916), 254 Pa. 574, 99 Atl. 163; Reardon v. Higgins (1906), 39 Ind. App. 363, 79 N. E. 208; James Bradford Co. v. United Leather Co. (1915), 97 Atl. 620; Houston, etc., Bank v. Gregg County (1918), (Texas Civ. App.) 202 S. W. 805; Jones, Liens §27 et seq.; Garrison v. Vermont Mills (1910), 152 N. C. 643, 69 S. E. 743. We are clearly of the opinion that the special finding of facts shows that appellant had such a lien upon the automobile in question under its contract with said sales company, and that appellee took possession of the same subject to such lien. It will be observed that appellant is not seeking to take possession of said automobile by virtue of its lien, of attempting to assert any interest therein, as against the
A receiver is not an innocent purchaser or a purchaser for value in any sense. 23 R. C. L. 56; Williams v. Johnson (1914), 50 Mont. 7, 144 Pac. 768, Ann. Cas. 1916D 595; Chalmers & Williams v. Surprise, Rec. (1919), 70 Ind. App. 646, 123 N. E. 841. He is an officer of the court appointing him, and represents not only the debtor, but his creditors as well. Welliver, Rec., v. Coate (1917), 65 Ind. App. 195, 1-14 N. E. 775; Marcovich v. O’Brien, Auditor (1916), 63 Ind. App. 101, 114 N. E. 100. After the appointment of a receiver, creditors cannot proceed against the debtor direct, but their claims must, be worked out through such receiver. Richards v. Wilson (1916), 185 Ind. 335, 112 N. E. 780; Marcovich v. O’Brien, Auditor, supra; Northwestern, etc., Ins. Co. v. Kidder (1904), 162 Ind. 382, 70 N. E. 489, 66 L. R. A. 89, 1 Ann. Cas. 509.
It thus appears that as between appellant .and the receiver, in so far as the latter represents the said sales company, appellant would be entitled to assert its lien on the fund in controversy, and such right could only be defeated by the receiver in case it appears that there were creditors who had a superior claim thereto. An examination of the special finding of facts fails to disclose that the said sales company had any creditors other than appellant, and hence we must assume that there was no one who had a superior right to such fund. We therefore conclude that the first conclusions of law on the facts found were correct, and that the court erred in modifying the same. However, we are of the opinion that justice will be best subserved by directing the court to grant a new trial, rather than to restate its conclusions of law. The judg