232 P. 518 | Wyo. | 1925
The appellant sued the receiver of the Bank of Lusk to have a claim filed with said receiver in the sum of $4316.56 declared to be a prior lien upon the assets of said bank. The court allowed the claim as a general claim, but refused to grant any preference, from which order the appellant has taken an appeal to this court.
According to the stipulation of the parties, filed in the court below, the Bank of Lusk had, on December 17th, 1920, in its possession, in escrow, a warranty deed of which appellant was grantor and H.C. Snyder Company grantee, conveying certain property in Niobrara County, Wyoming. Under the escrow agreement, the said bank was to deliver said deed to said grantee upon payment by said grantee to said bank for the benefit of appellant the sum of $4314.00. On December 17th aforesaid said H.C. Snyder Company paid said sum to said bank in conformity with said agreement and received said warranty deed. On December 20th, 1920, said bank, in order to pay said amount over to plaintiff, whose principal office was in Denver, Colorado, sent to the latter its draft in said amount of $4314.00, drawn on the Corn Exchange National Bank of Omaha, Nebraska. The draft was presented to the latter bank in due course and payment refused *297 for want of sufficient funds. In the meantime, and on December 22nd, 1920, the Bank of Lusk closed its doors, and as we gather from the record, the Omaha bank immediately appropriated all the money then to the credit of the Lusk bank on alleged past due indebtedness, although a sufficient amount was on deposit there on December 20th to pay said draft. In due course of time the respondent herein was appointed receiver of said Bank of Lusk. The appellant had a checking account with the latter bank from March, 1919 to the time that it closed its doors, with a balance of $291.05 on December 22, 1920, but the money paid by H.C. Snyder Company by reason of said deed was not credited to said account, and we may take it for granted herein, we think, from the facts shown, that the money so paid on December 17, 1920 was mingled with the general money which the Bank of Lusk had on hand at the bank on that date. Two main points only are presented by the brief: (1) Whether or not the amount so paid by H.C. Snyder Co. became a trust fund, and (2) whether said money has been sufficiently traced so that the claim therefor should be entitled to preference.
1. If the relation of debtor and creditor was created between appellant and the Bank of Lusk by reason of the payment made as aforesaid by H.C. Snyder Co., then the money so paid could not be considered a trust fund. If, on the other hand, the relation was that of principal and agent or bailor and bailee, then the contrary would be true. The record does not show any specific direction by appellant as to what was to be done with the money when collected by the bank, but the only inference possible to be drawn from the acts of the bank itself, namely, from the fact that the money was not credited to appellant's general account, but was attempted to be paid over to the latter by draft on the Omaha bank, is that it was not to remain in the bank to appellant's credit, but was to be paid immediately over to the latter. We think, therefore, *298
that the facts bring the case clearly within the holding in Foster, Receiver, v. Rincker,
"Counsel for the receiver seems to think that there is something in the fact that a draft was at once drawn and sent forward that serves to warrant the denial of preference. We do not see how this can be. It may be, as counsel suggests, that had the draft so drawn been presented for payment on the day it was drawn, or even on the following day, it would have been paid. But that cannot be accepted as ground sufficient on which to defend the decree. The Sheldon *299 bank chose to make returns of the collection by Chicago draft. Of necessity two days, at least, must elapse before such draft could be presented. In the meantime the bank had drawn out of the Chicago bank its funds available to meet the draft. As far as claimant is concerned, therefore, the case stands precisely as if the Sheldon bank had never had any funds in the Chicago bank. It requires no citation of authorities to make it clear that settlement, as for collection made, is not accomplished by forwarding a draft, which on being presented for payment within a reasonable time, as was this, is repudiated for want of funds."
2. We come then to the next and main question in the case, that is, whether or not the money has been sufficiently traced and identified in the hands of the receiver. An exhaustive note on the subject is found in L.R.A. 1916 C, 21-89. This court in State v. Foster,
Starting out, then, with this established principle, that the money in the case at bar must be traced and identified in some specific fund or property in the hands of the receiver — not, however, the identical money paid in — the question remains, whether, indulging in all proper presumptions, that has been done in this case. The burden of proof to do so is on the cestui que trust. 39 Cyc. 532. But when certain facts are shown, a presumption may aid him and the burden to produce further evidence may shift to the opponent. First Nat. Bank v. Ford,
"When it is once proved that trust money has gone into the general estate of a trustee who afterwards becomes insolvent, it would seem that we ought to presume, in the absence of other evidence, that it remains therein at his insolvency, and that we ought not to say it cannot be traced, or has wholly disappeared where the contrary may fairly be inferred. Sherwood v. Central Michigan Savings Bank,
In the case of Widman v. Kellogg,
"One reason of great force for the trustee assuming the burden of proving that he paid out the trust funds instead of his own, and that the trust funds did not pass into the hands of the receiver, is that in case of money, the means of knowledge on these subjects would not be possessed by the cestui que trust, but that the means of proof of the facts regarding it would ordinarily be wholly within the possession or control of the trustee. This is peculiarly so in the case of a bank."
In the case of Murray v. Bank,
"The trust fund came lawfully into the possession of the savings bank as the agent of appellee, and it will be presumed that the fund was retained in its custody, and that it was turned over to the receiver, unless the contrary is shown."
It follows from what we have said that the case must be reversed and, under the circumstances, remanded for a new trial, so that upon another hearing the facts may be shown and judgment entered not inconsistent with the principles of law herein stated. It is so ordered.
Reversed and Remanded.
POTTER, Ch. J., and KIMBALL, J., concur. *305