In this action plaintiff seeks to be subrogated to the rights of School District No. 78 of Otoe county on the оfficial bond of the district’s treasurer and for a money judgment against the principals and sureties on such bond. A demurrer to plaintiff’s amended petition was sustained by the trial court. Plaintiff elected not to further plead, and the action was dismissed. Plaintiff has appealed.
The facts pleaded and relied upon to support plaintiff’s alleged right of subrogation, as they appear in the petition, are: Moneys belonging to the school district and in the possession of its treasurer were deposited in the Bank of Otoe, which became insolvent, and the district was awarded a claim against the rеceiver of that bank for a trust fund, payable out of the assets in the hands of the receiver before the claims of depositors and of general creditors of the bank. This claim was duly adjudicated and paid by the receiver as a trust fund. Plaintiff now alleges that Buck, the treasurer, withdrew $894 while the bank was а going concern and embezzled the amount, and that the bank hav
Subrogation is of two kinds — legal and conventional. Legal subrogation is allowed in cases-where one who-pays the debt of another stands in the situation of a surety and is compelled, tо pay the debt to protect his own rights. Conventional subrogation results from an agreement of the рarties that the persons paying will be subrogated. 2 Story, Equity Jurisprudence (14th ed.) 110, sec. 706; State v. Citizens State Bank,
“To entitle onе to subrogation his equity should be strong and his case clear. * * * The person seeking subrogation must act fairly and equitably and be free from, fault. It will hot be allowed • * * * where he .would- derive an advantage from, оr establish his claim through, his own negligence or, in any way, would thereby reap advantage from his own wrong-doing, or from the wrongful act of one under whom he claims.” 60 C. J. 708. “The object of subrogation is the preventiоn of injustice. It is designed to promote and to accomplish justice, and is the mode which equity adоpts to compel the ultimate payment ,of a debt by one who, in justice, equity, and good, consсience, ought to pay it.” 60 C. J. 697.
“The doctrine of subrogation applies where a party is compelled to pay the debt of a third person to protect his own rights or to save his own property.” Cole v. Malcolm,
, The right of subrogation'never follows an actual primary liability, and one who discharges .a primary liability has no right of subrogation against another. In such cases payment is an extinguishment of the liability. 60 C. J. 712. In Nebraskа, a school district treasurer’s sole authority for deposit in a bank of school funds is-found in the statutes, and to make a legal deposit by such officer the statutory requirements must be complied with..
In Lincoln Nat. Bank & Trust Co. v. School District,
In State v. State Bank of Touhy,
Applying the principles аbove quoted to the facts disclosed by the record, it clearly appears that the funds deрosited in the bank could not have been deposited in the manner and under the circumstances рrescribed by statute. The deposit of the school funds was a wrongful act. The bank participated in the wrongful act. The funds so deposited never became the property of the bank.and werе not part of its assets. It held-the funds only in trust for the school district and did not perform that trust until
The pleaded facts are insufficient to warrant the application of the doctrine of subrogation. The trial court properly sustained the demurrer and dismissed the action.
Affirmed.