Fogg v. Bank of Friar's Point, 80 Miss. 750

Fogg v. Bank of Friar's Point

80 Miss. 750 | Miss. | 1902

Terral, J.,

delivered the opinion of the court.

In this case it is not possible for tax collector Fogg to put his finger upon any particular asset of the Bank of Friar’s Point, now in the receiver’s hands, and say, “This is my deposit or the product of my deposit,” but it is quite certain that the moneys deposited by Fogg in the bank are in their transmuted form in the hands of the receiver, Ilebdon. The moneys of the tax collector were intermingled with the other moneys of the bank, and in consequence of the confusion a right to a particular individual asset cannot be asserted; yet a priority of payment out of the mass of assets arises to the tax collector. Section 3077, code 1892, makes the deposit of the tax collector a trust fund. It is a trust fund from its nature and character (the legal estate being in the tax collector, and the beneficial estate being in the state, county, and levee board), as well as by the express declaration of § 3077. The bank received it as a trust fund nolens volens, and the principles of equity relat*756ing to trusts fully apply to it. It is a leading principle of equity jurisprudence that “wherever a duty rests upon an individual, in the absence of all evidence to the contrary, it shall be presumed that he intended to do right rather than wrong; to act conscientiously rather than with bad faith; to perform his duty rather than to violate it.” It must therefore be presumed, so far as it may, that the bank as trustee preserved the trust fund until all its other estate was exhausted, and that the trust moneys, so far as possible, are represented in the remaining assets of the bank. Pom. Eq. Jur., sec. 420; Knatchbull v. Hallett, 13 Ch. Div., 696; Central Nat. Bank v. Mutual Life Ins. Co., 104 U. S., 54 (26 L. Ed., 693).

It is said, however, that the statute does not apply in this case because the tax collector, before bringing this suit, had settled with the state, county, and levee board. That should not affect the result, for, if so, it would be in the power of the trustee in every case to defeat the trust by a mere delay of payment. Every tax collector must settle monthly (code 1892, § 3840), and, if such settlement destroyed the equity, the right conferred by the statute would be almost valueless. The fund is primarily preserved as a trust for the benefit of the state, county, and^levee board, and a payment to these several beneficiaries would subrogate the tax collector to their respective equities. A different result would defeat the wisdom of the legislature, and cannot be entertained.

Reversed and remanded.