79 Iowa 707 | Iowa | 1890
I. The petition shows that the Osceola Bank, under Code, section 912, was selected by the supervisors of the county as a depository for county moneys, and executed a bond, as required by the statute, with Cowles and Cowles as sureties; that there is due from the bank on plaintiff’s deposit account $4,839.65, which it has failed to pay; and that in proceedings instituted upon the relation of the attorney general a receiver was appointed, who holds all the assets of the bank. The bank made default, but the defendants Cowles and Cowles answered, admitting the execution of the bond, and, in effect, all the allegations of the petition. They allege that the fact of their relation to the' case as sureties was well known to plaintiff from the beginning, and as such they are entitled to have all the property of the principal, the bank, which is solvent, first exhausted. They further allege that, before the proceedings were instituted resulting in the appointment of the receiver, the bank gave plaintiff further security, consisting of certain notes, stocks and other securities, amounting to more than nine thousand dollars, a part of which plaintiff
The notes were delivered to the county treasurer as security for deposits made by the county in the bank by Gf. H. Cowles, the vice-president, who appears to have transacted the business of the bank. He executed the bond sued upon in the name of the bank, by himself, as vice-president. The notes were given as security to plaintiff upon his request and the request of the county attorney. The court, upon the issues between the intervenor Findley, the receiver, and the plaintiff and defendants, found that the bond in suit is “ample security to the county, and that the county treasurer had no right, authority or power to take the promissory notes turned over as additional security,” and there was no consideration therefor, and the transfer was, therefore, illegal and void. The court further held that the judgment upon the bond is not a lien upon the real estate owned by the bank, for the reason that it was then in the hands of the receiver, and that defendants had no equities or right which require property of the bank to be exhausted before the judgment can be enforced against defendants’ property.
i Appeal• from mterveentio°n: waiver. II. It is first insisted by the intervenor and plaintiff that, as defendants did not appeal from the judgment upon the bond, and their appeal *s from the judgment upon the proceedings 0f intervention, they cannot in this appea insist that the orders and judgment -in the proceedings
IV. “1. The defendant George H. Cowles had no right or authority, under the circumstances, to turn over the notes in question to the treasurer (plaintiff herein) as collateral security to secure the county for said deposits, and that his act in so doing was illegal and void, and did not bind the bank, and which the bank or the receiver had the right to repudiate, and recover back the notes.” This position by counsel is disposed of, briefly, by these considerations : George H. Cowles was the vice-president of the bank, and authorized to do business for it. It cannot be denied that he was authorized to execute the bond, and it is not claimed that his authority to do business for the bank was in any manner or degree restricted. He was authorized to pay debts of the bank, and to give security for the payment of the bank debts, when such security is authorized by law; for he did execute and give, in the name of the bank, the bond in suit, and it is not shown that he was thereto empowered by the bank, by any act, consent, or any authority, iii any form, expressed or implied. If he had authority to give the
■V. The second point is as follows: “2. The county treasurer (plaintiff) had no legal right to accept the same as security for the funds deposited in said bank, either as a protection to himself and bondsmen, or as additional security to the county.” It is quite as readily disposed of as the first. It cannot be doubted that, in the absence of any statutory prohibition, the county treasurer was authorized to demand and recover from the bank the money due the county. Surely, if he had such authority, he could accept security from the bank for its indebtedness. It would be strange, indeed, if any law existed prohibiting the county treasurer, the financial officer of the county charged with the duty of collecting the debt owed by the bank, from accepting security where, in his judgment, it is demanded. It would be an absurd rule forbidding the county treasurer, in the discharge of his duty, to do an act for the protection of the county when his judgment, as a faithful officer, directed it. The statute (Code, sec. 912) providing for security by bond to be given by a bank before deposits of county money are made therein does not forbid the county treasurer to take other security if, in his judgment, it is demanded. Other creditors of the bank cannot complain, for the notes were taken in the exercise of the undoubted right of a creditor, in the exercise of diligence, to secure his claim by taking collateral security of this character.
YI. The last position of counsel is expressed in this language: “3. Incase it should beheld by this court that the plaintiff, for the benefit of the county, had the right to hold said notes as additional security for the judgment in question, then we contend that they can only be held for the payment of any balance, if any, remaining after exhausting all property belonging to defendants George H. and 0.. W. Cowles subject to execution.” The consideration of this point requires us
We reach the conclusion that the notes given to the county treasurer as security for the county deposits must be first applied upon the judgment against defendants Greorge H. and C. W. Cowles. Any balance remaining after the payment of the judgment shall be applied to pay the depositors ratably. The proceeds of the real estate belonging to the bank shall not be subject to the lien of plaintiff’s judgment, so as to defeat the application of the proceeds to the depositors ratably, but they shall be so applied. The decree of the district court shall be reversed and remanded for a decree in harmony with this opinion, or, at defendants’ option, such a decree may be entered in this court. The intervenor (Findley, the receiver) shall pay the costs of this appeal. Revebsed.