108 Neb. 119 | Neb. | 1922
This is a controversy between A. F. Ackerman, receiver of the American State Bank of Aurora, Nebraska, an insolvent corporation, and Edith Maude Shear, Sarah Moore, and M. F. Stanley, trustee in bankruptcy for the Wentz Company, claimants. The property involved is a secured purchase money note for $10,000 in the hands of the receiver.
Through the agency of the Wentz Company, claimant
In a proceeding by the state of Nebraska to wind up the affairs of the insolvent American State Bank of Aurora, Nebraska, claimants, by formal pleas in equity, presented separately the following: Claim of Edith Maude Shear to be restored to her rights under the purchase money note for $10,000, payable on its face to Charles W. Wentz; claim of Sarah Moore for the establishment of a lien for $1,000 and interest on the 10,000-dollar purchase money note and mortgage in lieu of the prior lien released by Wentz; claim of the trustee in bankruptcy for the restoration of the 10,000-dollar purchase money note as an asset of the bankrupt estate of the Wentz Company.
The receiver objected to all the claims on the. ground that he is an innocent holder of the 10,000-dollar purchase money note by virtue of an assignment made by Wentz, payee, to protect an overdraft of the Wentz Company in
The trial court found that the receiver was not an innocent holder of the purchase money note and that it was not an asset of the insolvent hank; that the Wentz Company had paid liens and debts for Edith Maude Shear to the amount of $6,719.13, and that there was due her from the proceeds of her land a balance of $3,614.21, and that she was entitled to a lien on the 10,000-dollar purchase money note to that extent; that the claim of Sarah Moore should be allowed; that the trustee in bankruptcy, after payment of the claims of Edith Maude Shear and Sarah Moore, was entitled to the balance of the funds arising from a sale of the purchase money note. The receiver was directed to sell it and pay the proceeds into court for disbursement according to the findings of the trial court. From this judgment the receiver has appealed.
The controlling question on appeal arises from a traversed plea by the receiver that he is an innocent holder of the note in controversy and from the evidence on that issue. This question requires a more detailed statement of the facts.
The American State Bank commenced business as a commercial enterprise March 8, 1918. An officer of the state took charge of it in an insolvent condition March 17, 1920, and was succeeded by Ackerman, receiver, May 14, 1920. The bank has not since been open for the transaction of a general banking business.
The Wentz Company was a corporation dealing in real estate, farm loans, mortgages and insurance.
Charles W. Wentz was vice-president and managing officer of the bank. It had a president in name only. It had a cashier, but he recognized Wentz as the superior officer and deferred to him. In some capacity Wentz had exclusive control and management of the Wentz Company. The business of both corporations was generally transacted in the same building with Wentz the controlling spirit in both enterprises. The transactions of the corporations
The 10,000-dollar purchase money note was traced into the hands of the receiver in the following manner: When the account of the Wentz Company was heavily overdrawn and the bank itself was in danger of going to the wall March 15,1920, Wentz took the note to Lincoln and Omaha intending to use it for the benefit of the bank and the Wentz Company in raising money to apply on the latter’s ■overdraft. While he was a drunken, nervous' wreck in Omaha he there entrusted -the note to his wife. Missed from his bank, officers of the state department of trade and commerce followed him and promptly found him. In Omaha the state sheriff took the note from the wife of Wentz in the latter’s absence and gave it to the secretary ■of the state department of trade and commerce, to whom it was subsequently assigned by Wentz while in a hospital in Lincoln. By mesne transfers through successive representatives of the assignee, who is secretary of the state department of trade and commerce, the receiver procured the note. Assuming that the secretary and other' officers ■of that department knew nothing about the rights or the equities of claimants or of the insolvency of the Wentz Company, when the assignment was made, is the receiver an innocent' holder?
Though the secretary of the state department of trade and commerce was prompted by good motives and a sense ■of public duty, his view of the assignment, as presented by the receiver, cannot be adopted. The effect of the assign.ment was to create a voidable preference by the Wentz Company in favor of the American State Bank, within the
Affirmed.