*1 attorney An representing city of St. Louis stated at the hear- ing city that objections “no had setting to the court this sale aside.” testimony

There was also to customary the effect’that it for city notify to parties all in interested property an when execution was respondent issued and knowledge of such custom and upon relied it.

In this objection case there was no part of judgment on the creditor that the sheriff’s sale be set aside. respondent to stood twenty lose ($20,000) thousand dollars by the sale. “As (her) the purchaser, (her) his him protection bid entitled to no except protection such as was with parties consistent against unnecessary If loss. power court was perform without to simple justice, so act its control of the execution own its mockery.” process Hoevel, would be v. [Hoevel 402.] process during had control its court own the return term. only question be “The to asked and answered in such a case seems complained justice be, permitted to should the action of be in and good conscience, Wessell, ex rel. v. supra.] stand?” [State

Certainly justice, interest of be it cannot said that the trial permitting in stand, abused its discretion this sale when court slightly than brought purchaser more one cent on the dollar. The it interest; respondent will she out with be refunded great loss, paid. will city’s suffer and the be We will not be of the trial court should sustained. think the action setting aside the circuit court the sheriff’s sale is af- The order All concur. firmed. Edgar Treasurer, v. Redhair, Liquidation, and S. Commis L. Cantley, Bank of 577. Charge of Said Bank. 82 S. W. Finance, sioner of Two, May 7,

Division *2 Douglas appellants.

T. H. for Farrington respondent. <&Curtis and Herman Pufahl *3 WESTHUES, proceeding C. This a the is to establish a claim in $38,796.24 sum the preferred, assets of the defunct Bank of which in the hands of assets were liquidation. Department purpose The- the State Finance for the bal- preference, $13,000, trial a the sum of court ordered and the appeal claim. From of the sum as a common ance by appellants, was taken defendants below. May May 1931. On defendant bank closed its oh doors County, it was the Court of as a designated,

depositary county funds. The half for one-half of the other was Play. Farmers’ Bank of Fair defendant bank awarded to the $100,000. penal sum of It was conceded at the in the filed a bond depositary legally designated trial defendant bank was as a that soon county funds. The evidence disclosed of the for one-half kept a county designated, the treasurer depositaries were after the n much bank bank than the larger deposit in the defendant sum on equally money not words, was divided Play. other the of Fair In was evidence, This, learn from the depositaries. we the two between per- of the defendant the officers largely fact that due the larger deposit with their bank keep a county authorities to the suaded business, that the banking they is, in the needed because followed until practice This cash. pressed was hard ’ Respondents additional bank closed doors. its day the defendant average monthly balance that discloses the of the record abstract during For period. entire deposit in banks kept on the two following: year 1931, it shows Play “Fair Bank Bank

“Bolivar . n .$38,131.00 “Jan.$31,944.90 “Jan. 44,670.82 40,124.92 Feb. Feb. 27,235.32 40,132.44 Mar. Mar. 39,356.61 Apr.17,168.66 Apr. 35,494.93 12,385.77’ May May . . only month the bank of February was It will noticed that be equal deposit sum to the sum on Play Fair a on January, 1931, In court instructed bank. defendant bank. keep $40,000 deposit in the on treasurer theory part upon which the trial court allowed by quoting part can best ascertained preferred, claim as be as follows: judgment, which reads court’s ‘‘ ‘ day May, 1931, the fifth The Court further finds that on *4 deposit both said prior time thereto was on in of for some there Fifty ($50,- sum Dollars in round numbers the of Thousand banks Play only 000.00), and that the Bank at Fair had about Eleven ($11,000.00) ex- of sum and had not had to Thousand Dollars said long ceed said sum for a time. “ finds that the sum of Thirteen ‘The Court therefore Thousand moneys County, Polk ($13,000.00) of the of in the Dollars and hands custody County, wrongfully Polk was and and the Treasurer unlawfully in Farmers’ deposited the State Bank of Bolivar and that ($13,000.00) Thirteen Thousand as to said sum of Dollars ” preference in County entitled to of the funds the said bank.’ is Mr. county treasurer, Redhair, While was on the witness the stand as questioned by the follows: he was court “By Q. question My was whether the the Court: substantially in proportion, some time the been divided for same $38,000.00 in the something' bank here at and about Play? Fair $11,000.00 in the at

1133 cheeking bank all Well, you Play “A. on Fair see we were the getting all bank, it was lower drawing the time out and and of that any time, taking the while we were not from this one.” county from The disclosed refrained evidence that the authorities and checking against fund instance in the defendant at the the county request of the bank officials. officers the court The informed against county this the and treasurer that if the drew checks fund bank would to close. have in deposit any defendant bank not at time exceed the did by

the and amount authorized the bond. The of debtor relation was, and therefore, creditor created between defendant bank the county. Play the The amount in Fair was deposit on Bank county against reduced from month to month because the checked deposited the funds in that bank and not in the funds bank. Such county action on the part authorities, not, any theory change could under law, of the the relation of debtor creditor, and between the county, defendant bank and the to that of a trustee ex que and cestui Respondents trust. cite maleficio Compton case of William R. Co. v. Farmers’ Grant Trust Co. of 279 City, S. W. supervisors In that case board of drainage had, statutory district virtue of their authority, made an upon order their treasurer deposit in funds his hands follows: $2000 $2000 in the Bank, Peoples’ Citizens’ Bank, and the remainder, $2630 in Trust Company. The treasurer deposited the sum in entire the Farmers’ Company. Trust In that case the illegal. $4000 was held to have been There fore, deposit, which the Farmers’ Company Trust knew was unauthorized, was declared have beeíi a trust fund. theory upon which the relation of trustee ex maleficio que cestui trust by law, is created between banks and or counties school is districts, deposit, at the time it made, was protected by bond. v. Bank of Ava, 960, 65 S. [Mitchell Mo. (2d) 3) (2, ;

W. l. 99, c. Boone v. Cantley, 330 Mo. (2d) 56, 51 S. W. l. c. 58 Or for (5-8).] some other reasons , legally bank had not been named as depositary. re [In Co., Cameron Trust Mo. 1025, l. c. 1026 (1, law in such 3).] cases effect says to the parties, you knowingly dealing were with trust funds belonging public to the illegal manner and in way such a that its safety endangered. Therefore, title to passed the funds never from or school *5 districts, automatically and the bank became a trustee ex maleficio of the funds. Cases to this effect are numerous. re Cameron [In Co., supra; Trust Huntsville Trust Noel, Co. v. 321 12 S. Mo. 749, (2d) 751; W. Township Harrison v. People’s State Bank, 329 Mo. 165; also, liquidation in the matter of the of: Savings First Bank of Palmyra, Mo. 80 S. (2d) W. depositary a legally In the ease at bar the 861.] public, to protection stood as funds. Its bond receiving less bank,

safeguarding the funds loss. While complain, right had a funds, share of proportionate than its larger than A stake. public interest was at protected long for, as is within the amount the amount bid it illegal deposit as render bond, be considered such cannot supra. reason for cited, the bank a ex Cases trustee maleficio. case. lacking in such a invoking distinctly law is principal with is, circuit court reversed therefore, Cooley claim. common due as a directions to allow total amount ¡Bohling, (7(7., concur. is C., foregoing opinion by Westhues, CURIAM: —The PER judges All concur. opinion adopted as the of the court. (2d) 877. S. W. Harris, Appellant. P. v. Charles Two, May Division