80 S.W.2d 861 | Mo. | 1935
Lead Opinion
This is an appeal from a judgment of the Marion County Circuit Court allowing the claim of Marion County, Missouri, against The First Savings Bank of Palmyra, Missouri, a Missouri banking corporation, in liquidation, as a preferred claim of $18,721.67.
The County Court of Marion County, proceeding under the provisions of Chapter 85, Article 9 (Secs. 12184-12198), Revised Statutes 1929, estimated the county revenues at $80,000 and, dividing the same into four parts, selected said savings bank as depositary for two parts (two-fourths) of the funds of Marion County, on May 8, 1931. Thereafter, on May 25, 1931, the surety bond of said depositary in the penal sum of $40,000 was approved by said court. Shortly thereafter, the surety company desired to cancel one-half of said bond. Upon said depositary not offering other security, the matter was taken up with the county court, and that court, on September 28, 1931, the county having a credit balance of $50,822.71 in said bank, entered its order amending the order of May 8, to the end that the contract with said bank be for one-fourth of the county funds, and increased the contract with the Hannibal National Bank (the other county depositary) from two-fourths to three-fourths of said fund, further ordering that the bond of the savings bank be fixed at $20,000 and of the national bank at $40,000 (the same amount for the national as in the original order selecting the depositaries). At the same time the court ordered the county treasurer to adjust the county funds in accord with said amending order. On October 5, 1931, the surety bond of said savings bank in the penal sum of $20,000 was approved by the court, the county having to its credit in said bank the sum of $36,052.64. On February 1, 1932, the county's balance in said savings bank was $31,353.37 and the matter of excess credit over the principal amount of the bond was taken up with the bank, resulting in a contract of pledge of United States of America securities of the par value of $20,000 to the county in addition to the $20,000 bond, said action being approved by the county court order dated February 1, 1932. On August 22, 1932, the county court entered its order releasing $10,000 of the securities pledged on February 1, 1932; at which time the balance to the credit of the county was $35,375.10. On October 5, 1932, the county court entered its order canceling the remainder of the contract of February 1, 1932, with said bank, and released the remaining $10,000 in securities pledged as aforesaid. On said October 5, the balance due the county was $23,014.67. Thereafter the balance due the *678 county dropped, reaching the low figure of $16,462.66 on November 26, 1932; but again increased, standing at $38,721.67 on January 31, 1933. The board of directors of the bank voted to place the institution in the hands of the Commissioner of Finance and it closed its doors for the usual transaction of business on February 1, 1933. The county recovered from the bonding company $20,000, and this litigation is limited to the $18,721.67 overplus of the county's credit above the penal amount of the surety bond.
Chapter 85, Article 9, Sections 12184-12198, Revised Statutes 1929 (Mo. Stat. Ann., p. 6455 et seq.), governs the selection of county depositaries, and the decision in this case turns upon the construction to be placed on the provisions of said article with reference to the bond therein provided for. The appellant contends the relation between the bank and the county was that of creditor and debtor. Respondent contends the bank held the fund as trustee ex maleficio.
[1] Preliminary to a discussion of said Article 9, and its application to the facts before us, we note the following from the adjudicated cases: The provisions of said article are mandatory and must be complied with in all respects (School Dist. v. Cameron Trust Co., 330 Mo. l.c. 1075 (1),
[2] The original County Depositary Act was passed in 1889 (Laws 1889, pp. 81-83). [Huntsville Trust Co. v. Noel, 321 Mo. *679
l.c. 756,
In the instant case the original penalty of the depositary's bond was reduced from $40,000 to $20,000 as of October 5, 1932. Thereafter, the deposits in said depositary increased from $16,462.66 between November 26, 1932, and January 31, 1933, to $38,721.67. The county officials were without lawful authority to deposit and said depositary, as such, was without lawful authority to receive the $18,721.67 excess of deposits over the penal amount of the bond. Under such circumstances the title to said $18,721.67 did not pass, but remained impressed with the trust imposed upon it while in the lawful possession of the official rightfully entitled to it, and said depositary held the same as trustee ex maleficio. [School Dist. v. Cameron Trust Co., 330 Mo. l.c. 1077,
[3] Appellant contends the county court waived any right of thecestui que trust to priority of payment. Assuming (but not conceding under the facts of the instant case) that the savings bank, by reason of the approval of the $20,000 bond, became a duly qualified *682
depositary for certain funds of said county, its status as to deposits in excess of the amount of the penalty of its bond is as though it had not qualified as depositary for any of the funds of said county. Hence, there was no waiver of any rights of thecestui que trust to such excess of deposits. We have examined the authorities cited by appellant, but hold, under the facts here presented, this issue is determined by the cases cited supra. [See especially State ex rel. v. Page Bank, 322 Mo. l.c. 35, 36,
The instant case is distinguishable from the case of Ralls County v. Commissioner of Finance,
Under this ruling, it is unnecessary to pass upon the effect of the various acts of the county court in reducing the amount of the penalty of the original bond, or reducing the security pledged for the protection of the funds.
The judgment of the trial court should be and is affirmed.Cooley and Westhues, CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.