Anheuser-Busch Brewing Association v. Morris
| Decision Date | 03 January 1893 |
| Docket Number | 5114 |
| Citation | 53 N.W. 1037,36 Neb. 31 |
| Parties | ANHEUSER-BUSCH BREWING ASSOCIATION, APPELLANT, v. CREIGHTON MORRIS, ASSIGNEE OF THE FARMERS & MERCHANTS BANK OF HUMBOLDT, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Richardson county. Heard below before APPELGET, J.
AFFIRMED.
Story & Story, for appellant:
The plaintiff's money was a trust fund. It can be followed into the assignee's hands, and under sec. 24, ch. 6 Comp. Stats., should be paid in full as a preferred claim. (National Bank v. Insurance Co., 104 U.S. 54; Harrison v. Smith, 83 Mo. 210; Peak v Ellicott, 30 Kan. 156; Englar v. Offutt, 70 Md 78; Farmers & Mechanics Bank v. King, 57 Pa. 202; McLeod v. Evans, 28 N.W. [Wis.], 173.)
J. R. Wilhite and Edwin Falloon, contra.
On July 1, 1889, the Farmers & Merchants Bank of Humboldt made an assignment for the benefit of its creditors. Subsequently, Creighton Morris was elected by the creditors of the bank as assignee of the assigned estate, and qualified as such. Claims have been allowed by the county court of Richardson county against the estate aggregating more than double the appraised value of the assigned property. On September 13, 1889, appellant filed its claim as a creditor of said assigned estate to the amount of $ 827.83, for moneys collected by the bank for appellant and not remitted, which was allowed by the county court October 17, 1889, as an ordinary claim, no preference being given. Subsequently, on October 28, 1889, a ten per cent dividend was declared, and appellant, as a creditor, took the ten per cent upon his claim allowed. Afterwards, on May 13, 1890, a six per cent dividend was declared, and appellant accepted its pro rata share. On the 6th day of June, 1891, appellant filed with the county court its verified petition alleging that its claim was for trust moneys and praying that the same should be paid in full as a preferred claim, which application was denied on July 27, 1891, and on the same day a five per cent dividend was declared, but appellant declined to accept its pro rata share and appealed to the district court, where the decision of the county court was affirmed.
It is argued by the appellant, in effect, that the money collected for it by the bank was a trust fund in the hands of the latter, and that the making of the assignment did not divest the money of its trust character. There can be no doubt of the soundness of the proposition stated. This money collected by the bank did not belong to it, but to appellant, and it did not pass by the assignment to the assignee as a part of the assets of the bank. The assignee took the money subject to the trust in favor of the owner, and appellant was entitled under the provisions of the assignment law to have the same paid as a preferred claim against the estate, unless he has waived his right to such preference. The decisions cited in the brief of appellant fully sustain this conclusion, and we have been unable to find any in conflict therewith. (McLeod v. Evans, 28 N.W. [Wis.], 173; Farmers' & Mechanics' Bank v. King, 57 Pa. 202; Peak v. Ellicott, 30 Kan. 156, 1 P. 499; People v. City Bank of Rochester, 96 N.Y. 32; Cragie v. Hadley, 99 N.Y. 131; National Bank v. Ins. Co., 104 U.S. 54, 26 L.Ed. 693.)
The decision in Wilson v. Coburn, 35 Neb. 530, 53 N.W. 466, is clearly distinguishable from the case at bar. There an insolvent bank received a deposit of a sum of money from one Henry Wilson, and soon thereafter the bank made an assignment for the benefit of its creditors. The depositor filed with the county judge his claim, and a petition praying that he be adjudged a preferred creditor, and for an order for the payment of his claim in full. It was ruled that the fact that the bank, within the knowledge of its officers, received the depositor's money under circumstances which amounted to a fraud upon him, was not of itself sufficient to entitle him to a preference over other creditors from the funds of the bank in the hands of the assignee. The depositing of the money with the bank under the circumstances stated created the relation of debtor and creditor, and as the sum deposited had gone into and was mingled with the general funds of the bank, so as not to be capable of identification, or of being distinguished from the other assets of the bank in the assignee's hands, the depositor had no right to preference. In the case before us the transaction between the appellant and the assignor did not create the relation of a debtor and creditor, but the money collected constituted a trust fund in the hands of the bank for the benefit of the owner, and the assignment did not have the effect to divest it of such trust. The assignee stands in the place of the bank, and by the assignment he acquired no greater right to the money than the bank possessed.
Has appellant waived its right to insist upon the payment of its claim in full by having the same allowed as an ordinary debt against the estate, and by accepting two dividends from the assignee? It is plain that the answer must be in the affirmative.
Section 16 of the assignment law provides, among other things, that the county court shall fix a time within which claims against the assigned estate shall be filed.
Section 17 of the same act declares that
Section 18 provides that ...
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Anheuser-Busch Brewing Ass'n v. Assigned Estate of Farmers' & Merchants' Bank of Humboldt
... ... is conclusive, unless appealed from.Appeal from district court, Richardson county; APPELGET, Judge.Action by the Anheuser-Busch Brewing Association against the assigned estate of the Farmers' & Merchants' Bank of Humboldt and others to declare plaintiff's claim preferred. From a judgment for ... Subsequently Creighton Morris was elected by the creditors of the bank as assignee of the assigned estate, and qualified as such. Claims have been allowed by the county court of ... ...