Melaven v. Hunker

• Decision Date: 20 May 1931
• Docket Number: 3602.
• Parties: MELAVEN v. HUNKER et al.
• Court: New Mexico Supreme Court

299 P. 1075

35 N.M. 408, 1931 -NMSC- 023

MELAVEN
v.
HUNKER et al.

No. 3602.

Supreme Court of New Mexico

May 20, 1931

Syllabus by Editorial Staff.

Receiver of bank which secured benefit of deposit of public funds held estopped to assert bank's pledging of assets to secure sureties on depository bond was ultra vires (Laws 1923, c. 76, as amended by Laws 1925, c. 123; Comp. St. 1929, § 13-156).

Sureties on bond securing deposit of county funds, at time no funds of county were on deposit, notified bank that, unless they were indemnified, they would withdraw as sureties and notify county officials not to make deposit. Bank agreed to indemnify sureties, and pursuant to resolution of its board of directors certain assets of bank were indorsed and delivered to a trustee for the sureties to indemnify them and save them harmless.

Solvent bank may pledge its securities to indemnify surety on bond securing deposit of public funds (Laws 1923, c. 76, as amended by Laws 1925, c. 123; Comp. St. 1929, § 13-156).

Appeal from District Court, San Miguel County; Holloman, Judge.

Suit by John W. Melaven, as receiver of the People's Bank & Trust Company, against George H. Hunker, trustee for himself and others, and others. Judgment for the plaintiff, and the defendants appeal.

Reversed, and cause remanded, with directions.

Hunker & Noble, of East Las Vegas, for appellants.

Charles W. G. Ward, of East Las Vegas, for appellee.

HUDSPETH, J.

The appellee was appointed receiver of the insolvent People's Bank & Trust Company in the year 1925. He brought this suit against the appellants and sought to recover certain bills receivable pledged by said bank to appellants, sureties on a depository bond for $12,000, given to secure deposits of public funds of Mora county. At a time when there was no money of Mora county on deposit in said bank appellants learned that the treasurer of Mora county intended to deposit $8,000. The bank was notified by appellants that, unless they were indemnified, they would withdraw as sureties and notify the treasurer and board of finance of Mora county not to make said deposit. The bank agreed that, if appellants would not take the threatened action, the bank would indemnify them, and pursuant to a resolution of the board of directors the assets of said bank involved in this suit were indorsed and delivered to appellant Hunker, as trustee for all the sureties, to be held by him to indemnify and save harmless the sureties. Thereafter the $8,000 of Mora county funds were deposited and remained on deposit in the People's Bank & Trust Company until it closed its doors and ceased to do business.

The trial court made findings of fact based on a stipulation, including...