112 Kan. 26 | Kan. | 1922
The opinion of the court was delivered by
This action was brought by C. 'H. Lamb against the receiver of the Peoples State Bank of Coffeyville to recover $500 and to have it adjudged to be a trust fund payable in
The case was tried upon agreed facts, in substance that plaintiff deposited in the bank in an escrow account $500 to be paid to one Anderson on the fulfillment of a ■ contract between him and plaintiff. The contract, executed on November 23, 1920, was to the effect that Anderson would drill a well for oil or gas on certain premises and plaintiff was to have a one-eighth interest in the lease, and if oil was found should pay one-eighth of the cost of equipping the oil well. It was stipulated that upon the completion of the oil yrell and the delivery to plaintiff by Anderson of a one-eighth interest in the lease and the disposition of the remaining interests in the lease, the deposit was to be paid to Anderson, but if he failed to perform these conditions the bank was to return the money deposited to the plaintiff. Anderson failed to perform the conditions, but the money was not returned to plaintiff. Instead of holding the money for the specified purpose it Was commingled with the general funds of the bank and used in honoring checks, making loans and carrying on the general business of the bank. After-wards the bank became insolvent, and, on January 20, 1921, a receiver was appointed who took charge of its assets and is now winding up its, business. Andérson was indebted to the bank in an amount of $3,000 and the receiver claimed a lien on the escrow deposit for the payment of Anderson’s indebtedness. The plaintiff claimed that the escrow deposit was a trust fund in the hands of the receiver and should be treated as a preferred claim against the assets in the hands of the receiver. The court sustained the claim of the plaintiff and held that he was entitled to a preferential payment out of the assets in the hands of the receiver. The facts relating to the misappropriation of the special deposit, the insolvency of the bank and the passing of the assets into the hands of a receiver, are the same as in the companion case of Secrest v. Ladd, Receiver, just decided, ante, p. 23, and under the rule of that authority the plaintiff is entitled to follow the fund and reclaim it in full out of the assets which passed to the receiver before distribution is made to general creditors.
The receiver asserted a claim against the fund because Anderson was indebted to the bank in the sum of $3,000. That indebtedness
Judgment affirmed.
