50 Neb. 277 | Neb. | 1897
The First National Bank of Sterling had issued to James D. Russell its certificate for fifty shares of its capital stock of the par value of $5,000. Russell had been a member of the firm of Russell & Holmes, bankers at Tecumseh. The plaintiff, the First National Bank of Tecumseh, had succeeded to some extent to the business of Russell & Holmes, but the last named firm remained in existence for the purpose, at least, of closing out its late business. Russell & Holmes obtained a loan of $5,000 from the Schuster-Hax National Bank of St. Joseph, Missouri, and pledged as security Russell’s stock in the Sterling bank. The pledge was made by Russell’s signing a blank assignment indorsed on the certificate and delivering it to the Schuster-Hax bank. The Schuster-Hax bank sent the certificate to the Sterling bank, caused the transfer to be entered, and the Sterling bank issued a new certificate in the name of S. A. Walker, who was cashier of the Schuster-Hax bank. The Russell & Holmes note to the Schuster-Hax bank was paid in installments, the last payment having been made February 15, 1892. This suit was begun by the Tecumseh National Bank, which alleged in its petition substantially the foregoing facts; ■and further, that the Russell & Holmes note to the Schuster-Hax bank had been paid out of the money of the Tecumseh National Bank by Russell & Holmes and by George D. Bennett, the cashier of the Tecumseh National Bank, at the request of Russell, and that the moneys of the Tecumseh National Bank had been wrongfully appropriated for that purpose without the consent or knowledge of its directors. The Tecumseh National Bank on these averments prayed for an order requiring the surrender of the certificate to the Tecumseh National Bank and for its sale in payment of the amount so used. Russell & Holmes answered alleging that their debt to the Schuster-Hax National Bank had been paid by Bennett at their request, and that in consideration of his pay
The general principles of equity jurisprudence discussed in the briefs, are, for the most part, well settled .and call for no extended discussion. Such difficulty as lies in the case arises in the application of established principles to the somewhat complicated state of facts presented by the record. The theory of the plaintiff seems to be that by virtue of the payment of the Schuster-Hax notes out of its funds, it became entitled to be subrogated to the rights of the Schuster-Hax bank derived from the pledge of the stock to it. It is contended by Bush that no right to subrogation is established, because
Bush claimed to be a purchaser for Amlue without notice of any rights on the part of the Tecumseh bank. But Ave do not think that he established this by proof. For reasons not necessary here to detail, the Schuster-Hax bank had refused to surrender the certificate at the time Bennett paid the note. Bush claims that he was the owner of a certificate of deposit in the former bank of Russell & Holmes; that in January, 1892, he made a contract with Russell whereby he was to surrender this certificate and accept in lieu thereof the stock certificate in controversy together with other collateral. He was then informed that the stock certificate had been pledged to the Schuster-Hax bank. He has not surrendered his certificate of deposit, so that he has parted with no portion.
The case of the First National Bank of Sterling is based on the theory that Russell had been a stockholder in a bank whose assets the Sterling bank had bought and whose liabilities it had assumed; that among the assets so acquired was a note made by Russell; that the understanding was that should the assets of the former bank prove sufficient, stock would be issued to its stockholders by the bank of Sterling to represent the excess of assets so acquired; that the Sterling bank had issued the stock to Russell in consideration of his pledging collateral notes to secure his note held by that bank; that he had misrepresented the value of the collateral. Whether or not this is true we need not inquire, because the Sterling bank had recognized Russell’s transfer of the stock to the Schuster-Hax bank by accepting a surrender of the certificate and issuing a new certificate to the cashier of the Schuster-Hax bank. It would also appear that the Sterling bank had elected to ratify the transaction by reducing its claim against Russell to a personal judgment. It had certainly waived any right to rescind the
Affirmed.