212 N.W. 748 | Iowa | 1927
Lead Opinion
We are grateful to counsel for the concise and systematic manner in which they have presented what would otherwise have been a very formidable record.
The Iowa State Savings Bank finally closed its doors on the evening of April 17, 1924. A receiver was appointed. Some 25 or 26 claims for preference, aggregating $41,870.86, were allowed, 9 of which are before us on this appeal.
I. The claims of the Massachusetts Bonding Insurance Company, 1. BANKS AND Hal Summers, and F.A. Martin are founded on BANKING: drafts and cashiers' checks purchased by insolvency: claimants. The instruments were presented for preference: payment after the bank closed, and payment draft and refused. These claims are ruled by Leach v.
check Mechanics Sav.
holders. *499 Bank,
II. The Bankers Trust Company placed travelers' checks with the defendant bank for sale, with instructions to remit to claimant, immediately on sale, "the full face plus one fourth of one per cent New York exchange or any exchange upon a 2. BANKS AND central reserve city." The defendant bank sold a BANKING: number of the checks, and remitted by draft upon insolvency: its Chicago correspondent. The draft was not preference: presented until after the defendant bank had draft closed its doors. Payment was consequently remittance: refused. The defendant was authorized to make effect. remittance by Chicago draft; and under the authorities above cited, claim for preference should have been disallowed. Allowance thereof must, therefore, be reversed.
III. Claim of Mrs. O.C. Servis. The finding of the referee on this claim is as follows:
"The basis of this claim is for interest collected by the bank and belonging to this claimant. The claimant had purchased from the bank various real estate mortgages, and had permitted the bank to collect the interest thereon and hold 3. BANKS AND the same for the account of the claimant. These BANKING: transactions had occurred during a number of insolvency: years prior to the time of the closing of the preference: bank. Mrs. Servis or her agent, after the unauthorized collection of interest by the bank, would call draft or at the bank and receive the payment of the check interest, delivering coupons if the interest was remittance: represented by interest coupons. Collections so effect. made over the period in which these transactions occurred amounted to considerable sums. Various collections were charged in the real estate loan account and were paid with *500 checks out drawn by the bank upon that account, and delivered to the claimant. In many instances cashier's checks were written, at the time or soon after the interest items were paid, and held at the bank until claimants called for them. The bank either had direct or implied authority from this claimant to make these particular collections of interest.
"Conclusions of Law. Under the recited facts and the record, it appears that no trust relation existed between this claimant and the bank, and that the claim is not entitled to preference. It is recommended that the claim be allowed as a general claim only."
The evidence is meager, but we are of the opinion that no such course of business between the bank and Mrs. Servis is shown as to raise any inference that she agreed to accept the bank's credit or liability, as evidenced by its cashier's checks, either as a substitute for the interest liability of the mortgagors or for the money paid by them for the interest. The bank was claimant's agent to make the collections. Its duty, in the absence of a sufficient showing to the contrary, was to collect the money and pay it over to claimant. We think the evidence is insufficient to show that she waived the bank's duty to pay over the money, or that she agreed that moneys collected for her might be mingled with the bank's assets and that she would accept the bank's credit for it. For these reasons and those later set out in connection with the claims of H.H. Dwight and others, the preference should be allowed, but prorated.
IV. State Bank of Omaha claim. On April 15, 1924, the State Bank of Omaha forwarded to the defendant bank for collection checks aggregating $5,015.59. The defendant was directed to collect the checks and remit the proceeds. The 4. BANKS AND checks were all drawn on other banks. They were BANKING: received by the defendant bank on April 16, insolvency: 1924, and presented through the local clearing preference: house. The balance of the clearings on that date dissipation was in favor of the defendant bank to the amount of trust of $2,600, for which amount a draft was issued funds. to the defendant bank. The defendant did not receive cash. It received only the $2,600 draft, and sent it to the National City Bank of Chicago for credit. Defendant thereupon remitted to the claimant its own *501 draft on the National City Bank for the amount of the collection, $5,015.59.
On April 16, 1924, the Omaha bank forwarded to defendant for collection and remittance checks on other banks, aggregating $7,731.56. These were received on the 17th and presented through the clearing house. The balance on the clearings that day was against the defendant, so that it actually received nothing in the form of cash or draft for the checks. Defendant remitted to the Omaha bank its draft on the National City Bank for the amount of the checks, $7,731.56. The defendant's balance sheet for April 16, 1924, showed a credit balance in Chicago of $1,939.50, and for April 17, 1924, a debit balance or overdraft of $12,174.51. The books of the Chicago bank for that date showed a credit balance in favor of the defendant bank of $17,893.09, because drafts drawn by the defendant had not yet been presented. The defendant bank was owing the Chicago bank over $100,000 on bills payable. The Chicago bank applied the book credit of $17,893.09 on this indebtedness, and refused payment of the drafts issued to claimant and the other drafts in transit. The defendant bank had no authority to remit to the Omaha bank by the draft, and the receiver does not deny the relationship of principal and agent between the Omaha bank and defendant. The error assigned is in finding that the proceeds of the collections have come into the hands of the receiver, and that the receiver's assets were thereby augmented. Claimant relies on Messenger v. Carroll Tr. Sav. Bank,
The checks owned by the Omaha bank and remitted to the defendant for collection were used in the payment of checks held by other banks and drawn on the defendant bank, except as to $2,600. The $2,600 was received by the defendant in the form of a draft, and that specific draft was remitted to Chicago and was applied to the payment of the indebtedness of the defendant bank to the Chicago bank. The defendant got no cash for the checks received from the claimant. The only fund that it received was the $2,600, and that did not become a part of defendant's cash or of any fund that has come into the hands of the receiver. The claimant bank has no standing to claim a preference merely as a creditor. It makes no difference that its claim as a creditor is founded upon fraud, conversion, or breach of trust. The claimant has no standing other than as the owner of property which came into the possession of the defendant bank, and thence into the possession of its receiver. If the property of the Omaha bank did not find its way, either specifically or through substitution of other property, into the possession of the receiver, the claim to a preference cannot be sustained. To obtain a preference, the claimant "must show, by presumption of law or otherwise, that his fund has been preserved in the hands of the assignee, as an increase of the assets of the estate, from which it may be taken without impairment of the rights of general creditors." Bradleyv. Chesebrough,
Payment of debts is not, of itself, such an increase of assets. For instance, if the deposits amounted to $500,000, and the assets available for their payment to $250,000, the depositors would get 50 per cent. If $50,000 of the assets were used to pay checks or deposits to that amount in full, while the deposits would be reduced to $450,000, the assets available for their payment would be reduced to $200,000, and the remaining *503
depositors would get only 44 per cent plus. If the $50,000 were taken to pay claims other than those of depositors, then the depositors, though, under the law, preferred creditors, would be postponed, to that extent, to other creditors, and get only 40 per cent. The evidence shows affirmatively that the plaintiff's property did not augment the assets in the possession of the bank, and did not come into the possession of the receiver. Idem;Leach v. State Sav. Bank of Logan,
V. Claims of H.H. Dwight, Metropolitan Life Insurance Company, and Mechanics Metals National Bank. These may be considered together. Dwight's claim is similar to that of Mrs. Servis. The evidence fails to show any authority, express or 5. BANKS AND implied, to the bank to make remittance by BANKING: cashier's checks or drafts. The record is that insolvency: Dwight was not a depositor. His instructions to preference: the bank were to remit to him the interest as it nonchange in was collected. He was in Florida. The bank made trust funds. out its cashier's checks for Dwight's interest, but without authority from him, and filed them with his securities. He found the checks with his papers when he got them from the bank after the bank had closed.
The Metropolitan Life Insurance Company placed funds with 6. BANKS AND defendant to be paid out for specified first BANKING: mortgage loans then being negotiated, when liquidation: designated conditions were complied with. The equitable Metropolitan Life Insurance Company did not trust: carry a general deposit account with defendant. presumption: The money was placed to the credit of the real prorating estate department of the bank, to be paid out in intermingled accordance with the conditions named. It was trust funds. mingled with the other moneys of *504 the bank. This money as a whole was drawn on in the ordinary course of the bank's business.
The Mechanics Metals National Bank sent to defendant notes for collection. Defendant made collections, and issued and retained in its files cashier's checks for the amount of the proceeds. In the Dwight case, we must hold that the collections were received as agent, and that defendant had no authority to substitute its obligation for the money which it held as agent. In the Metropolitan Life Insurance Company and Mechanics Metals National Bank cases, the agency or trust relationship is conceded. In all three cases, the question is whether there was an augmentation of the funds in the possession of the bank which came into the hands of the receiver, and if so, the extent of such augmentation. In each case, the funds are treated, in the record and arguments, as money received by the defendant bank. As the case is presented, we must treat such funds as having become a part of the cash balances in the possession of the bank. There is no evidence that they were transmuted into any other form of property, and we cannot presume that they were. We cannot presume, for instance, that they were remitted to the National City Bank, and there dissipated in the appropriation of the credit balance to the payment of defendant's drafts and bills payable. Defendant carried accounts with numerous correspondents, the balances in which fluctuated greatly, and we cannot presume that claimants' funds became a part of those balances. The only finding that can be made is that the funds, as stated, became a part of the cash balance on hand. The case is one of an acknowledged trust relationship. In such case, the burden of proof, or more correctly, the burden of going on with evidence from this point to follow the funds and show 7. APPEAL AND dissipation, is with the receiver. Hudspeth v.
ERROR: Union Tr. Sav. Bank,
With this modification, the allowance of preferences to H.H. Dwight, Mechanics Metals National Bank, and Metropolitan Life Insurance Company is affirmed. The case is remanded for further proceedings not inconsistent with this opinion. — In partaffirmed; in part reversed and remanded.
EVANS, C.J., and De GRAFF and ALBERT, JJ., concur.
Addendum
The Mechanics Metals National Bank, the Metropolitan Life Insurance Company, and the State Bank of Omaha have filed petitions for rehearing. The first two contend 8. BANKS AND that the preferences allowed to them should be BANKING: established against all of the assets coming liquidation: into the possession of the receiver, instead of equitable being limited to a pro-rata distribution of the trust: cash. They and the State Bank of Omaha argue presumption: that it will be presumed that the trust fund was prorating present in the mass of the bank's assets, under intermingled the "augmentation theory," and that the receiver trust funds. must overcome this presumption by clear and satisfactory proof that the bank had lost or dissipated the fund.
Petitioners are in error in their assertion that the augmentation theory in any such sense prevails in this state. InDavenport Plow Co. v. Lamp,
"That plaintiff was a trust creditor does not, of itself, entitle him to preference over general creditors. To obtain that right, he must show, by presumption of law or otherwise, that his fund has been preserved in the hands of the assignee, as an increase of the assets of the estate, from which it may be taken without impairment of the rights of general creditors."
This court has since steadily adhered to this doctrine. Cases post. Payment of debts is not an augmentation of assets. Leach v.State Sav. Bank,
"It is the settled rule of our cases that a preference will not be allowed unless it be found that the fund has increased the present assets of the bank, and that it may be taken therefrom without impairment of the rights of creditors."
Confusion and misunderstanding have arisen probably because of the entanglement of the ultimate fact, which must be made to appear affirmatively, with the method by which that fact may be shown. The ultimate fact that must be shown is that the "fund has been preserved in the hands of the assignee, as an increase of the assets of the estate, from which it may be taken without impairment of the rights of general creditors." Cases above;Hudspeth v. Union Tr. Sav. Bank,
"`The guiding principle is that a trustee cannot assert a title of his own to trust property. If he destroys a trust fund by dissipating it altogether, there remains nothing to be the subject of the trust. But, so long as the trust property can be traced and followed into other property into which it has been converted, that remains subject to the trust.'" In re Hallett'sEstate, 13 Ch. Div. 696, quoted in Nonotuck Silk Co. v. Flanders,
As said in Stilson v. First St. Bank,
"Claimant's claim of preference does not present a controversy with the bank, but with the other creditors of the bank. The right of preference as against other creditors is not an equity. When such preference is awarded, it is awarded strictly as a right of property, and not as a mere right to equitable relief against other creditors."
It is said in Slater v. Oriental Mills,
"* * * the illustration may be used of a debtor mingling trust funds with his own in a chest or bag. Though the particular money cannot be identified, the amount is swelled just so much, and the amount added belongs to the cestui que trust. But in the latter case there is no swelling of the estate, for the money is spent and gone; or, as respondent's counsel pertinently suggests, `Knight Bruce's chest — Jessel's bag — is empty.' Shall we, therefore, order a like amount to be taken out of some other chest or bag, or out of the debtor's general estate? Suppose the general estate consists only of mills and machinery acquired long before the complainants' money was appropriated. Upon what principle could that property be taken to reimburse them? But the complainants say: `Our money has been misappropriated *508 by the debtor without our consent and without our fault. Why should we not be reimbursed out of his estate?' Undoubtedly is it right that everyone should have his own; but, when a claimant's property cannot be found, this same principle prevents the taking of property which equitably belongs to creditors of the trustee, to make it up. The creditors have done no wrongful act, and should not be called upon, in any way, to atone for the misconduct of their debtor. It is an ordinary case of misfortune on the part of claimants, whose confidence in a trustee or agent has been abused."
By our statute the depositor is given a preference in the distribution of the proceeds of the property of the bank. The depositors are entitled to have the bank's property devoted first to the payment of depositors. They are not entitled to have property not belonging to the bank applied to such payment. Conversely, the owner of property which the bank has taken and misappropriated is not entitled to reimbursement out of property which belonged to the bank, and which the law gives to the depositors. The controversy is with the depositors. Stilson v.First St. Bank,
"It follows, therefore, that the burden is on the one claiming preference to point out the fund into which his property has gone, show that it exists, passed into the hands of the receiver, either in its original form or as substituted in other property, and that, in taking out his property, he leaves the property of the insolvent concern intact for general creditors."
The ultimate fact of non-dissipation may be shown by actual proof, or prima facie by presumption.
Property in the possession of and ostensibly belonging to the bank is presumed to be its own. Such property may be shown, however, to be the property of claimant, and to have come into the possession of the bank under circumstances which did not give the bank title to it. When it is so shown to have come into the possession of the bank, without more, we allow to claimant the benefit of the presumption that the bank did not dispose of the property which it had no right to dispose of, and has not lost or dissipated it, but transmitted it, with the other assets in its possession into the possession of the receiver. This *509
presumption has its limitations, which need not be now particularly referred to. First St. Bank v. Oelke,
This presumption has been spoken of as "a presumption of law." It is not a presumption of law, but a rebuttable presumption of fact. Stilson v. First St. Bank,
In the case before us, both on original submission and in the petitions for rehearing, the collections for the Mechanics
Metals National Bank and the Metropolitan Life Insurance Company are treated as having been made in the form in which the collecting bank would have authority to make them, — that is, in money. It is shown, therefore, that moneys belonging to claimants came into the possession of the bank, and were not paid over by the bank to claimants. From these facts, standing by themselves, a presumption would arise that the moneys of the claimants passed with the assets in the bank into the possession of the receiver. It is not presumed that the money was converted by the bank into bills receivable, or into a deposit account with another bank, or into any other form of property. If it appears that the claimant's money was intermingled with the bank's money, the trust attached to the commingled fund. When by withdrawals the commingled fund has been diminished below the amount of the trust fund, the trust fund is, to the extent of such diminution, dissipated. As said in the Slater case,
"The money was mingled with the funds of the bank, which were certainly increased by that amount, and the trust character *510 of the sum so appropriated operates to create a lien for its amount upon the entire fund with which it was mingled; and when thereafter the fund is diminished by withdrawals therefrom by the trustee, he is presumed to have withdrawn his own moneys, and so long as the balance left on hand is equal to or greater than the trust fund, the right of the cestui que trust to have it applied to the payment of his claim remains unimpaired."
It was recognized in Leach v. Iowa St. Bank,
"So far as appears, upon this record, the fund to the credit of the Iowa State Bank in its correspondent bank was never depleted to a point below the proceeds of these bonds."
It was recognized in In re Insolvency of Farmers Merch. Sav.Bank,
"It follows that either the bonds in the possession of the receiver must be retained by him, because not specifically identified, and be used for the purpose of paying general creditors, or they must be prorated among the respective claimants. It would be manifestly inequitable and unjust to deprive the claimants thereof, and thereby swell the assets of the bank, which never acquired title thereto, to the advantage of creditors. We have no hesitation in holding that the bonds must be returned to the claimants, to be prorated among them, or sold by the receiver, and the proceeds thus used."
In Leach v. State Sav. Bank,
"The argument for the applicant at this point is that the deposit of these funds to the credit of the bank necessarily enlarged its assets, and that, therefore, the amount coming later into the hands of the receiver must have been enlarged accordingly. The first part of this argument would be good, if the bank were solvent; the latter half of the argument is nonsequitur. The tracing of these funds shows that they operated to the advantage of particular creditors only. If the money had been in some manner invested in other assets, a different question would be presented. The money disappeared into a chasm of indebtedness. It reduced particular indebtedness accordingly, but it created no asset. So far as the debtor bank was concerned, it was a dissipation, and not an investment."
The general principle is well expressed in County of Grand *511 Forks v. Baird,
"The principle is that the trustee cannot assert a title of his own to trust property. In applying this principle to banks holding public funds in trust, and not in the capacity of debtors, the conversion by the bank of the cash assets, from time to time, into the various forms of investment, and their employment in the ordinary business of the bank, must be held to involve the cash to which it has title as owner, and not that which it holds in trust; for it is at all times precluded from asserting its ownership of the amount so held. From this it follows that the cestui may, at any given time, fasten the trust upon the cash assets available, to the extent of the minimum on hand between the origin of the trust relation and the times of its enforcement. This principle has never, in our opinion, been successfully controverted since Sir George Jessel, Master of the Rolls, gave utterance to his remarkably simple, yet compelling, illustration."
As said in Empire St. Sur. Co. v. Carroll County, 114 C.C.A. 435, 447 (194 Fed. 593, 605), quoted in Poisson v. Williams, 15 Fed. (2d Series) 582, 584:
"Proof that a trustee mingled trust funds with his own, and made payments out of the common fund, is a sufficient identification of the remainder of that fund coming to the hands of the receiver, not exceeding the smallest amount the fund contained subsequent to the commingling * * * [citing cases], as trust property; because the legal presumption is that he regarded the law, and neither paid out nor invested in other property the trust fund, but kept it sacred."
This rule is likewise subject to the qualification that the receptacle in which the trust money is kept, or the bank account in which it is deposited, may be the receptacle or bank account kept for the purposes of the trust; that the withdrawals may be shown to be withdrawals of trust funds, and the replacements therein for the purpose of replacing the trust moneys wrongfully withdrawn therefrom. See Leach v. Iowa St. Bank,
Andrew v. Security Sav. Bank,
The petitions are overruled.