54 Neb. 725 | Neb. | 1898
To an understanding of this case the material and undisputed facts are: On January 9, 1896, William Thomssen was the county treasurer of Hall county, Nebraska. On that date and the 13th and 15th days of said month he made general deposits to his own credit in the Bank of Commerce of Grand Island, in said county, aggregating $16,828.32. The moneys so deposited werq public moneys rightfully in the hands of Thomssen as county treasurer of said county. The deposit so made .was unlawful. The officers of the bank knew that the money so deposited by the treasurer was not his, but the money of the public, and that Thomssen held such money as the county’s agent or trustee. On January 20 of said year the Bank of Commerce became insolvent, ceased to do business, and its assets were subsequently placed in the hands of a receiver. When the receiver took possession of the assets of the bank there were in its vaults in cash $140, and no more. Between. January 9 and January 20 Thomssen drew checks against the deposit made by him in said bank amounting to $968.14, so that, when the bank ceased to do business, it was indebted to Thomssen in the sum of $15,860.18. This money the bank used in paying off its depositors other than the county treasurer.
1. It is insisted by appellants that the county, by accepting the fifteen per cent dividend, has estopped itself from asserting that it is a preferred creditor. If the claim of a private individual had been allowed as that of a common creditor, and he had afterwards accepted a dividend paid thereon by the receiver, he would probably be in no position to afterwards maintain an action to have his claim decreed a preferred one, as he would be bound by the judgment or adjudication, unless appealed from, which recognized his claim as that of a common creditor, and estopped because of his acceptance of the dividend paid on such non-preferred claim. (Anheuser-Busch Brewing Ass’n v. Morris, 36 Neb. 31; State v. Thomas, 53 Neb. 464.) But the county is not estopped here from asserting that its claim is a preferred one because of the action of its county board and treasurer in the premises.
2. The treasurer was a trustee of the county for this money, and since the bank borrowed the money of the treasurer, knowing it was county money, it acquired no greater rights to the money than the treasurer himself had. It has sometimes been held that where a trustee of a trust fund, or one who has received that fund
The foregoing propositions are sustained by the following authorities: 2 Story, Equity Jurisprudence [13th ed.] secs. 1258, 1259; Thompson’s Appeal, 22 Pa. St. 16; Sherwood v. Central Michigan Savings Bank, 61 N. W. Rep. [Mich.] 352; Neely v. Rood, 54 Mich. 134, 19 N. W. Rep. 920; Little v. Chadwick, 151 Mass. 110, 23 N. E. Rep. 1005; Holmes v. Gilman, 138 N. Y. 369, 34 N. E. Rep. 205; Nonotuck Silk Co. v. Flanders, 87 Wis. 237, 58 N. W. Rep. 383; National Bank v. Insurance Co., 104 U. S. 54; Gianella v. Momsen, 63 N. W. Rep. [Wis.] 1018; Slater v. Oriental Mills, 27 Atl. Rep. [R. I.] 443; Freiberg v. Stoddart, 28 Atl. Rep. [Pa.] 1111; Englar v. Offutt, 70 Md. 788; Boone County Nat. Bank v. Latimer, 67 Fed. Rep. 27; In re Cavin v. Gleason; 105 N. Y. 256, 11 N. E. Rep. 504; Northern Dakota Elevator Co. v. Clark, 53 N. W. Rep. [N. Dak.] 175, and cases there cited.
In State v. Foster, 38 Pac. Rep. [Wyo.] 926, the state of Wyoming and the county of Laramie, in said state, sought to have a trust declared in their favor against the entire assets of an insolvent bank in which the treasurers of said county and state respectively had deposited the public moneys, and have their claims allowed as preferred ones. The opinion is an able and an exhaustive
From the admitted facts in this case our conclusion is that Hall county was not entitled to have its claim allowed as a preferred one against the estate of the Bank of Commerce, except to the extent of $140, the amount of cash in the vaults of the bank when it failed. As there is no evidence whence this cash was derived, the presumption is that it was a part of the county money. But counsel for both parties to this litigation have cited certain opinions of this court which each claims sustain his contention, and we now proceed to examine the cases cited.
In Wilson v. Coburn, 35 Neb. 530, a customer of a bank made a deposit therein after it had become insolvent, but without his knowledge. He then sought to have a trust impressed upon the assets of the bank in the hands of its assignee, or, in other words, to have his claim against the bank made a preferred one; but this court denied him relief, on the ground that he was unable to trace, distinguish, and identify the money deposited in the bank. This case then is an authority for the conclusion we have reached in the case under consideration.
In Anheuser-Busch Brewing Ass’n v. Morris, 36 Neb. 31,
Farwell v. Kloman, 45 Neb. 424, is in line with the conclusion reached in the case at bar. In that case it was held that equity would award the beneficiary of the trust property any particular property which could be identified as having been purchased with the trust property. But such beneficiary was denied the right of preference, upon the ground that the trust property had been dissipated and mingled- by the trustee Avith his own until it was incapable of identification, and that no part of the assets of the insolvent trustee’s estate was shown to be the product of any part of the trust fund.
In Capital Nat. Bank v. Coldwater Nat. Bank, 49 Neb. 786, there were in the vaults of the insolvent trustee at the time of its failure $11,000 in cash. The trust fund amounted to $4,000, and we held that the beneficiary of the trust fund Avas entitled to have his claim preferred to that of other creditors of the insolvent trustee. This case, then, is in line with the conclusion reached
What has just been said of the Capital National Bank Case is also true of State v. Midland State Bank, 52 Neb. 1. As the record in that case discloses, — although the fact does not appear in the opinion, — the cash in the vaults of the bank at the time it became insolvent exceeded the amount of the trust fund; and again the presumption arose that in that cash was included the trust money of the school district.
The only case in this court which seems to be contrary to the conclusion we have reached in the case at bar is the State v. State Bank of Wahoo, 42 Neb. 896. In that case the trust property consisted of money, and the claim of the beneficiary of this fund was ordered paid as a preferred claim out of the assets of the insolvent trustee, a bank. The opinion does not disclose whether the cash in the vaults of the bank at the time of its failure was equal to or exceeded the amount of the trust fund, and I have not access to the record and cannot therefore say what the record did disclose in that respect; but it -was néver the writer’s intention to hold that the beneficiary of a trust fund, simply because of the character of that fund, was entitled to a preference out of the assets of the estate, of the insolvent trustee, and the case is not to be regarded as an authority for that doctrine. It was not the intention of the court or the waiter of that opinion to adopt the doctrine of McLeod v. Evans, supra; nor was it the intention to depart from the principle announced in the case of Wilson v. Coburn, supra. The case, like every other, should rest upon some principle; and if it cannot be made to rest upon the principle of Wilson v. Coburn, then, like the Wandering Jew, it should not be allowed to rest at all, but move on forever. At all events, the
Reversed and remanded.