57 Neb. 225 | Neb. | 1898
The Lincoln Savings Bank & Safe Deposit Company, a banking institution of the city of Lincoln, assigned to Moffett M. Cobb certain school warrants to secure an indebtedness of $6,165.68, evidenced by a certificate of deposit issued on June 3, 1895. The warrants were not actually delivered at the time of the assignment, but, by agreement between the' parties, were retained by the bank as collecting agent for Cobb.. The bank subsequently became insolvent and John E. Hill, having been appointed receiver, took possession of its assets and proceeded to administer the trust. Before the receiver was appointed the bank had misappropriated the warrants, and had not paid the indebtedness which they were given to secure. In April, 1896, Moffett M. Cobb died, and afterwards his legal representative presented to the district court of Lancaster county a petition alleging the facts above recited and asking that the amount of the warrants be made a preferred lien on the assets of the bank and tliat the receiver be directed to pay the same before making distribution among general creditors. The court granted the prayer of the petition and the receiver brings the record here for review. The theory upon which it is ■sought to establish a prefereuce in favor of the administratrix is that the warrants were the properly of Moffett M. Cobb and that by their unlawful diversion the owner became entitled to an equitable lien on the entire assets of the bank.
It is familiar doctrine that the owner of property may follow and reclaim it so long as it can be identified and distinguished; and that when one holding the property of another in trust commingles it with his own so that
Reversed.