Hood v. Hardesty

• Decision Date: 04 January 1938
• Docket Number: No. 4199.,4199.
• Citation: Hood v. Hardesty, 94 F.2d 26 (4th Cir. 1938)
• Parties: HOOD v. HARDESTY.
• Court: U.S. Court of Appeals — Fourth Circuit

94 F.2d 26 (1938)

HOOD v. HARDESTY.^*

No. 4199.

Circuit Court of Appeals, Fourth Circuit.

January 4, 1938.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

James M. Guiher, of Clarksburg, W. Va., and Herschel H. Rose, of Fairmont, W. Va. (Steptoe & Johnson, of Clarksburg, W. Va., on the brief), for appellant.

D. H. Hill Arnold, of Elkins, W. Va., for appellee.

PARKER, Circuit Judge.

This is a suit by a receiver of a national bank, to whom we shall hereafter refer as the plaintiff, to recover from the receiver of a state bank, to whom we shall refer as defendant, the proceeds of certain bonds pledged by the national bank to secure a deposit of funds made by the state bank receiver. It appears that the bonds were pledged in 1931. A portion of them were returned to the bank on the reduction of the deposit account in 1932. Following the passage by the West Virginia Legislature of the Act of July 28, 1932, Acts 1932, Ex. Sess., c. 7, hereafter quoted, the national bank executed a form of bond pledging the bonds already held by defendant so as to conform to this statute, and the pledge as thus consummated had the approval of the Comptroller of the Currency and the Commissioner of Banking of West Virginia. Following the insolvency of the national bank, the bonds which had been pledged were sold with the approval of the plaintiff; and from the proceeds of the sale the deposit of defendant was paid. This suit was subsequently instituted to recover from defendant the proceeds of the pledged bonds thus received by him, less the dividends to which he would have been entitled on his deposit account; and, from a decree for plaintiff in accordance with the prayer of the bill, the defendant has appealed.

Three questions are presented by the appeal before us: (1) Whether the pledge in question can be upheld as a pledge to secure a deposit of public money of a state within the meaning of the Act of June 25, 1930, 12 U.S.C.A. § 90; (2) if not, whether the plaintiff is precluded by the voluntary nature of the payment from seeking recovery of the proceeds of the bonds used with his consent in the liquidation of the deposit balance; and (3) whether plaintiff is precluded from recovery by failure to trace the proceeds of the bonds into funds in the hands of the defendant. We think that all of these questions must be answered in the negative.

The contention of the defendant on the first question is that in view of the provisions of the West Virginia Act of July 28, 1932, the deposit of plaintiff should be treated as a deposit of public money of the state. The portion of the West Virginia statute relied on is as follows: "A bank or trust company may pledge, hypothecate, deliver or deposit securities to guarantee deposits of the United States, state of West Virginia, a county, district, school district or a municipal corporation, and, with the consent in writing of the commissioner of banking, may pledge, hypothecate, deliver or deposit securities and/or assets to guarantee deposits made by receivers of closed and/or insolvent banking institutions, and the receiver of a closed and/or insolvent banking institution, if the proceeding be not in court, with the consent in writing of the commissioner of banking, and if the proceedings be in court, with the consent in writing of the commissioner of banking and the approval of the court, may accept securities and/or assets of a banking institution to secure deposits made by such receiver."

This statute, it is true, authorizes a pledge of assets by a bank to secure deposits by receivers of closed or insolvent banks; but, as it is only a state statute, it cannot enlarge the powers granted by Congress to national banks. Spradlin v. Royal Mfg. Co., 4 Cir., 73 F.2d 776, 777. In this respect the case here differs from O'Connor v. Rhodes, 65 App.D.C. 21, 79 F.2d 146, 151, relied upon by defendant, where the statutes held to authorize the pledge to secure deposits by the Comptroller of the Currency were federal statutes, which could properly be considered as extending the powers of the bank. Here the state statute becomes material only if the deposits for which it authorizes security to be given are embraced within the terms of the Act of June 25, 1930, 12 U.S.C.A. § 90, which provides: "Any association may, upon the deposit with it of public money of a State or any political subdivision thereof, give security for the safe-keeping and prompt payment of the money so deposited, of the same kind as is authorized by the law of the State in which such association is located in the case of other banking institutions in the State."

Unless the funds deposited can be brought within the definition of public money as contained in the statute quoted, therefore, the pledge relied on by defendant falls under the condemnation of the decisions of the Supreme Court in Texas & Pac. R. Co. v. Pottorff, 291 U.S. 245, 54 S. Ct. 416, 78 L.Ed. 777, and City of Marion v. Sneeden, 291 U.S. 262, 54 S.Ct. 421, 78 L.Ed. 787. But manifestly funds in the hands of the receiver of a state bank are not "public money of a state or any political subdivision thereof." As pointed out in the eleventh note to the Pottorff Case, 291 U.S. 245, at page 257, 54 S.Ct. 416, 419, 78 L.Ed. 777, such funds in the hands of the receiver are "private funds." We expressly so held in Griffin v. Royall, 4 Cir., 70 F.2d 103, 104, where we said: "Clearly, the deposit of the receiver of the state bank was not the deposit of `public money of a State or any political subdivision thereof.' A deposit of the funds of an insolvent bank is a deposit of private funds. See note 11...