36 Neb. 328 | Neb. | 1893
This is an action to foreclose two real estate mortgages given by the defendants Chase and wife upon lots 762, 763, 764, 765, 766, also lots 748, 749, 750, 751, 752, 753, lots 752 to 766 inclusive, and 748 to 753 inclusive in the town of Fairmont, in said Fillmore county, Nebraska. Of the above lots No. 767 is the sole property of Hattie E. Chase, the wife of J. O. Chase, and lots 765 and 766 are occupied as a homestead by Ghase and family. The proof tends to show the following facts: In December, 1887, and January and February, 1888, the plaintiff, who resides in the state of New York, held a number of mortgages on real estate in Fillmore county which were payable at the Fillmore County Bank, and were then maturing. The evidence of these mortgage debts, together with releases, were sent by the plaintiff direct to the First National Bank of Fairmont with instructions to collect the amounts due in each instance and remit to him and deliver the respective releases on payment being made in full. In the progress of these transactions it appears that Griffin sent to this bank the following notes and mortgages:
Dec. 27, 1887, note of Campbell............:.....$1,080 00'
Dec. 27, 1887, note, of Sikes........................ 1,296 00
Dec. 27, 1887, note of Brown...................... 540 OO
Dec. 27, 1887, note of Watt........................ 1,080 00
Dec. 27, 1887, note of Austin..................... 540 OO
Jan. 27-, 1888, note of Heller...................... 756 00
Mar. 6, 1888, note of Logsdon.................... 459 00
Mar. 6, 1888, note of Holcomb................... 1,080 00
Total...........................................$7,075 OO
The bank collected all of the above, except the notes of Logsdon and Holcomb, and remitted the same to the plaint
" The court also finds that there is due to the plaintiff upon the notes set forth in said petition, which said mortgage was given to secure, the sum of $2,940, and that the plaintiff is entitled to a foreclosure of said mortgage as prayed only on the following of said lots, that is to say, on lots 767, which was the individual lot of the defendant Hattie E. Chase, and upon lots 766 and 765, which were the homestead property of the defendants J. O. Chase and Hattie E. Chase. The court finds that as to said lots the said mortgage gave a lien to the plaintiff for the amount
The defendants appeal. In the defendants’ briefs the matter is discussed as though the plaintiff was a general depositor of the bank and hence the mortgages in question inure to the benefit of the bank. This contention is not sustained by the proof. The letter of the plaintiff of March 6, 1888, in regard to the Logsdon and Holcomb mortgages is as follows:
“West Troy, N. Y., Mar. 6, 1888,
“To Cashier First National Bank, Fairmont, Neb.
Inclosed I hand you for collection and remittance notes and mortgages of Samuel Logsdon and wife...... $425 00
Int. due Feb. 17, ’88.................................. 34 00
$459 00
John Holcomb and wife..............................$1,000 00
Int. to Mar. 10, 1888................................. 80 00
$1080 00
“A. Logsdon’s money was on deposit at maturity of papers, his int. slid. reed, to that date. In.all these cases please carry out faithfully the provisions of the papers. I do not know what to calculate in regard to some of these
“Yours, W. Griffin.
“ Please acknowledge receipt. W. Griffin.”
The testimony of Samuel Logsdon as to whom and when he paid the mortgages is as follows:
Q. Did you give a note and mortgage to William Griffin lit one time?
A. Yes, sir.
Q. Did you ever pay that note and mortgage ?
A. Yes, sir.
Q. How much was it?
A. Four hundred and twenty-five dc'lars principal.
Q. How much interest?
A. Thirty-four dollars, I think.
Q. When did you pay it?
A. About one month after it was due, I think about the 20th of March; it was due the 17th of February.
Q. To whom did you pay it?
A. J. O. Chase.
Q. How did you pay it?
A. I paid it in money.
Q. Did you pay anything besides the principal and interest?
A. I paid the exchange.
Q. What exchange?
A. It was the same as money; I placed coupon notes — the exchange was fifteen cents and then he charged me extra; I paid him the fifteen cents for the coupon and the rest I cannot tell you how much.
Q. State when you paid the money to Mr. Chase whether he said anything in regard to your paying exchange.
A. Yes, sir; he did.
Q. What was it?
A. I cannot tell you just what he said; I just paid him
Q. What, if anything, did he say about what he got out of it?
A. He said he just got his per cent for collecting, that was all he got out of it, and he never offered to do business for nothing, or something like that; I cannot exactly give you the words.
Similar testimony was given in regard to the payment of the Holcomb mortgage and interest. We think that the proof establishes the fact that the bank received the money in question of the plaintiff, as his agent, with directions to remit to him. The money was not to be deposited in the bank but sent at once. This simplifies the ease very much. It is very clear that the bank was the agent of the plaintiff and that the relation of principal and agent existed between them. The bank therefore held the funds of the plaintiff as trust funds and they were never mingled with the funds of the bank with the plaintiff’s consent.
In Peak v. Ellicott, 30 Kan., 156, where a party had paid to the cashier of a bank the amount of a note given by him to the bank, which the cashier claimed had been rediscounted in another town, but would be sent for and canceled, the bank soon afterwards failed without canceling the note. The court held that the money so received was a trust fund, which must be applied to the purposes indicated and that it did not become a part of the assets of the bank. To the same effect Ellicott v. Barnes, 31 Kan., 170.
In McCleod v. Evans, 66 Wis., 401, 28 N. W. Rep., 173, it was held that a banker who accepts for collection a draft, and in fact collects the money thereon, holds the same as trustee of the owner; and after his assignment for the benefit of creditors, the trust character still adheres to the funds in the hands of the assignee, irrespective of other creditors. (Francis v. Evans, 33 N. W. Rep. [Wis.], 93; Anheuser-Busch Brewing Ass’n v. Morris, 36 Neb., 31.)
2. It clearly appears that J. O. Chase personally received about $1,600 of the money in question. There is no proof that he turned it over to the bank. He recognized his personal liability for the money by executing with his wife the mortgages in question. They were given, therefore, so far as the proof shows, to secure the debt of Chase and not of the bank. The objection of want of consideration therefore fails.
3. It is possible as between the wife as surety for her husband and creditors of the bank that her personal estate and homestead are liable only after the lots owned by J. O. Chase are sold. This phase of the case is not very clearly presented in either brief, and we will hear further argument upon it. Except as herein modified, the judgment of the court below is affirmed.
Judgment accordingly.