Jones v. Merchants' Bank of Montgomery, 95 So. 274

95 So. 274 | Ala. | 1923

The Merchants' Bank of Montgomery is being liquidated by the State Superintendent of Banks. The institution did a general banking business up to December 23, 1921, when financial embarrassment caused it to cease business. The petitioner, appellant, seeks to have the liquidating officer pay, as a preferred, prior claim, to the petitioner or the Chemical National Bank of New York, $2,600 out of the assets of the institution in the superintendent's charge. So far as is now necessary to state them, the circumstances upon which petitioner rests the action or relief he seeks are these: On October 8, 1921, the Merchants' Bank loaned petitioner $8,000, for a period of three months, taking his note therefor. On October 11, 1921, petitioner's note was placed with the Chemical Bank as collateral security for the Merchants' Bank's indebtedness to the Chemical Bank. On December 17, 1921 — prior to the maturity of petitioner's note, and without notice or knowledge on the part of petitioner of the note's transfer to the Chemical Bank — petitioner gave the Merchants' Bank two checks, aggregating $2,600, drawn on the deposit and savings accounts of petitioner and of his wife in the Merchants' Bank, as payment pro tanto on petitioner's note; but this $2,600 was never remitted to the Chemical National Bank by the Merchants' Bank, that sum being, on December 17, 1921, but credited on bills receivable account on the books of the Merchants' Bank. The petitioner sought to have the sum of $2,600, so evidenced, characterized as a trust fund in the hands of the Merchants' Bank, and to have a primary, preferred lien or charge imposed upon the assets of the Merchants' Bank, in the hands of the liquidating official, to the extent of the stated sum, viz. $2,600. The court below denied the particular relief sought, and defined the petitioner's status to be that of a general creditor of the Merchants' Bank.

Apart from other considerations that might conduce to the affirmance of the decretal order under review, it will suffice to say — in accordance with the authority of Nixon State Bank v. First State Bank, 180 Ala. 291, 60 So. 868, Bank of Florence v. U.S. Savings Co., 104 Ala. 297, 16 So. 110, and Lummus Cotton Gin Co. v. Walker, 195 Ala. 552, 70 So. 754 — that there is afforded by this record no evidence identifying, with requisite precision, the $2,600 in question as among the assets of the Merchants' Bank passing into the hands of the liquidating officer, a measure of designation that is essential to recourse to the trust-fund doctrine that was considered and stated in Bank of Florence v. U.S. Savings Co., 104 Ala. 297,16 So. 110, and that has been followed and correctly applied in subsequently delivered decisions. It is hardly necessary to repeat that the fact that the aggregate balance or fund in the bank's custody at all times (until the institution was closed) exceeded the sum in question ($2,600) does not serve the purpose of identification within the purview of the pertinent rule. Smith v. Montgomery, Supt. of Banks, post, p. 100, 95 So. 290.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.