Bliss v. United States

• Decision Date: 20 November 1930
• Docket Number: No. 8983.,8983.
• Citation: 44 F.2d 909
• Parties: BLISS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

44 F.2d 909 (1930)

BLISS v. UNITED STATES.

No. 8983.

Circuit Court of Appeals, Eighth Circuit.

November 20, 1930.

Charles M. Skiles, of Lincoln, Neb. (Ira D. Beynon and John A. Skiles, both of Lincoln, Neb., on the brief), for appellant.

Ambrose C. Epperson, Asst. U. S. Atty., of Omaha, Neb. (Charles E. Sandall, U. S. Atty., of Omaha, Neb., Robert Van Pelt, Asst. U. S. Atty., of Lincoln, Neb., and George A. Keyser and Edson Smith, Asst. U. S. Attys., both of Omaha, Neb., on the brief), for the United States.

Before KENYON, BOOTH, and GARDNER, Circuit Judges.

GARDNER, Circuit Judge.

In this case, the United States brought suit against the appellant, as receiver of the Nebraska State Bank of Humboldt, Neb., to recover certain postal funds of the United States which had been deposited in said bank while it was a going concern, and asked decree adjudging its claim to be a prior one over other creditors, under section 3466 Revised Statutes, title 31, USCA § 191. The facts are not in dispute and appear in the record from the admitted allegations of the pleadings, supplemented by written stipulation of the parties.

The Nebraska State Bank of Humboldt, Neb., was, as its name indicates, a state bank. On the 26th of April, 1929, the department of trade and commerce of the state of Nebraska took charge of this bank and all its assets. On the same date, and at or prior to the time the bank was taken over by the department of trade and commerce, and apparently as a part of the same transaction, the directors of the bank signed the following written instrument, to wit:

"Humboldt, Nebraska, April 26, 1929.

"We the undersigned, Directors of the Nebraska State Bank, Humboldt, Nebraska, do hereby acknowledge receipt of the original notice, of which the above is an exact copy, as having been received this day from R. H. Larson, State Bank Examiner and Representative of the Department of Trade and Commerce of the State of Nebraska; and do also acknowledge that there exists among the assets of the Nebraska State Bank, Humboldt, Nebraska, sufficient losses on worthless and doubtful assets equal to more than the capital of said bank and that our reserve is below legal requirements, and that, although a reasonable time has been allowed by the Secretary of the Department of Trade and Commerce of the State of Nebraska, in which to remove such losses and to restore the impairment of capital of said bank and in which to restore the reserve to legal requirements, up to and including this 26th day of April 1929, said losses, impairment of capital and deficiency in reserve still exist in said bank."

The notice referred to in this signed statement is as follows:

"Humboldt, Nebraska, April 26, 1929. "To the Officers, Directors and Stockholders of the Nebraska State Bank, Humboldt Nebr.

"This is to notify you that I am this day taking charge of the properties, business and affairs of the Nebraska State Bank, Humboldt, Nebraska, acting for and under the instructions of the Secretary of the Department of Trade and Commerce, and of the State of Nebraska.

"Signed R. H. Larson "State Bank Examiner."

On the 15th of May, 1929, the secretary of the department of trade and commerce communicated to the Attorney General of Nebraska facts relative to the conduct of the business of the bank and its condition at and prior to April 26, 1929, among which was the insolvency of the bank, and requested appropriate action to place the bank in the hands of a receiver. On the 16th of May, 1929, the Attorney General, pursuant to the Nebraska statute, presented to the district court of Richardson county, Neb., a petition in which the state of Nebraska, on relation of the Attorney General, was plaintiff, and the Nebraska State Bank of Humboldt was defendant, asking the appointment of a receiver for the bank and alleging various grounds for such appointment, including insolvency. The petition was not answered by the defendant, so that its allegations stood confessed, and, on the 3d day of June, 1929, "the interested parties being present or represented," the cause was brought on for hearing and a receiver was appointed, the secretary of the department of trade and commerce being named as such receiver, pursuant to statutory provision.

When the bank was taken in charge by the department of trade and commerce on the 26th day of April, 1929, there was on deposit in the bank, in postal funds of the United States, the sum of $271.05 to the credit of the United States postmaster of Humboldt, and at the same time there was in transit from the Humboldt postmaster to the postoffice department at Omaha, Neb., a draft issued by the Humboldt State Bank in the sum of $230, which had been purchased by the postmaster at Humboldt with United States postal funds.

It was alleged in the petition for appointment of a receiver, among other things, that the bank was and is insolvent and unable to meet its obligations, and that it was necessary that a receiver be appointed to take charge of, liquidate, and wind up the affairs of the bank. It was stipulated that the bank was actually insolvent, in that its assets were insufficient in value to pay its debts and liabilities, and that the liabilities of the bank probably exceeded the value of its assets not less than $32,128.81; that the receiver refused to pay the claim of the United States as a prior claim, but proposed to pro-rate and pay this claim with all other preferred claims of the bank, and refused to pay the claim in full, unless the assets of the bank were sufficient to pay all the preferred claims of the bank in full. It was also stipulated that neither the officers nor stockholders had intervened in the suit for the appointment of a receiver; that the receiver was proceeding to liquidate the assets of the bank. It was also stipulated "that neither the officers of said bank, nor the stockholders of said bank, nor both together, voluntarily turned over or surrendered to the proper official of the State of Nebraska, the property and business of such bank, but that the proper officers of the State of Nebraska, with reference to banking came to said bank, and took possession thereof, under and by virtue of the authority placed in them by the laws of the State of Nebraska."

The lower court found in favor of the government, and entered decree, adjudging the government's claim to be a prior one, under the provisions of section 3466, United States Revised Statutes. The receiver has appealed, and in this court contends: (1) That no act of bankruptcy had been committed, and no voluntary assignment had been made by the Nebraska State Bank of Humboldt until the appointment of the receiver on the 3d day of June, 1929; and (2) that, by virtue of the Nebraska statutes, the depositors of the bank acquired a prior lien on all the assets of the bank when the same were taken over by the department of trade and commerce, and hence the claim of the government must prorate with, and be paid on, the same basis as the claims of the other depositors. Section 3466, United States Revised Statutes, reads as follows:

"Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed."

Section 3467 (31 USCA § 192) provides:

"Every executor, administrator, or assignee, or other person, who pays any debt due by the person or estate from whom or for which he acts, before he satisfies and pays the debts due to the United States from such person or estate, shall become answerable in his own person and estate for the debts so due to the United States, or for so much thereof as may remain due and unpaid."

Section 3466 is to be liberally construed. Bramwell v. U. S. F. & G. Co., 269 U. S. 483, 46 S. Ct. 176, 70 L. Ed. 368; Price v. United States, 269 U. S. 492, 46 S. Ct. 180, 70 L. Ed. 373; United States v. Guaranty Trust Co. (C. C. A.) 33 F.(2d) 533; Beaston v. Farmers' Bank, 12 Pet. 102, 9 L. Ed. 1017.

It was admitted that the total value of the bank's assets was less than its debts, and that it was actually insolvent. Actual insolvency being admitted, it remains to determine whether, within the meaning of section 3466, the bank made a voluntary assignment of its property or committed an act of bankruptcy. We have set out a stipulation to the effect that neither the officers nor the stockholders of the bank had voluntarily turned over the bank to the proper officers of the state. This stipulation, we must assume,...