257 N.W. 111 | S.D. | 1934
This is an action by the plaintiff school district to secure possession of certain warrants issued by the plaintiff or a money judgment for their value. The case was tried to the court, and findings and judgment were in favor of the defendants, and from this judgment and order denying motion for new trial plaintiff has appealed.
The record discloses that the Wakpala State Bank suspended business on the 22d day of December, 1928, and the superintendent of banks took charge of the affairs of the bank immediately thereafter for purposes of liquidation. Corson county had on deposit on the date of suspension the sum of $5,785.81, and the plaintiff school district at that time had on deposit the sum of $35,540.75. The bank pledged as security for the payment of county funds warrants issued by the plaintiff school district together with other securities consisting of county and township warrants and real estate mortgages.
The complaint alleges that the officers of the bank delivered to the county treasurer of Corson county the warrants in question, and that the same were accepted by him when "the bank was insolvent and when its suspension by the superintendent of banks was imminent and inevitable," and that the treasurer had at that time "both actual and constructive knowledge of the insolvency" of the bank.
The county treasurer in his answer denies generally the allegations of the complaint and alleges affirmatively that the warrants were pledged as security for the payment of county funds by the bank as a designated county depository. The court found that there was no evidence that the bank was insolvent at the time of the delivery of the warrants to defendant treasurer, and that the warrants were pledged in good faith.
[1] Section 8984, Rev. Code 1919, contains a general prohibition to the effect that no state bank shall give preference to any depositor or creditor by pledging the assets of the bank as collateral security. An exception has been made to this general prohibition to include deposits of county and other public funds. Chapter 53, Laws 1927, and chapter 50, Laws 1933; Strain v. Potter County,
[2] It appears that real estate mortgages owned by the cashier of the bank and his wife were included among the collaterals first deposited with the county treasurer. These mortgages were withdrawn on August 6, 1928, and warrants were substituted. The other warrants here involved were pledged on March 25, 1927. Plaintiff offered proof of the legal reserve of the bank on certain dates between March 1, 1927, and December 22, 1928, but no attempt was made to prove that the value of the assets of the bank when it pledged the warrants were not equal to its liabilities, exclusive of stock liabilities. While there is some evidence that a portion of the assets of the bank did not have a realizable cash value, the record would not warrant a finding of actual insolvency or knowledge of an impending closing when the warrants were pledged.
[3, 4] Appellant next contends that the evidence is insufficient to sustain the findings of fact; that the trial court should have found that plaintiff prior to the closing of the bank had no notice of the pledging of the warrants by the bank. As urged by the appellant, it is the general rule of law that an assignee of a thing in action or of a nonnegotiable written contract for the payment of money takes an assignment subject to all rights to set-off which the debtor or maker had against the assignor at the time or before such party receives notice of assignment. Sections 742, 2307, Rev. Code 1919; Lewis v. Rutland Independent School Dist.,
We have considered the other assignments of error presented by plaintiff and find that they present no reversible error in the proceedings in the trial court.
The judgment and order appealed from are affirmed.
All the Judges concur.