Old First Nat. Bank & Trust Co. v. Scheuman
| Decision Date | 10 March 1938 |
| Docket Number | 26971. |
| Citation | 13 N.E.2d 551,214 Ind. 652 |
| Court | Indiana Supreme Court |
| Parties | OLD FIRST NAT. BANK & TRUST CO. et al. v. SCHEUMAN et al. |
Appeal from Allen Circuit Court; Wm. P. Endicott, Special judge.
Vesey & Shoaff, of Fort Wayne (Fay W. Leas, of Fort Wayne, of counsel), for appellant.
Eggeman Reed & Cleland and James P. Murphy, all of Fort Wayne for appellee.
This action was first instituted by the State of Indiana, on the relation of Luther F. Symons, Bank Commissioner, for the appointment of a receiver for the Citizens Trust Company. The appellees, Scheuman and Kunkel, were appointed receivers. In this action the Old First National Bank & Trust Company filed a cross-action to procure the allowance of a claim for a certain sum against the receivership of the Citizens Trust Company and to have the same declared a vendor's lien on certain described real estate. The cause was put at issue upon two paragraphs of complaint and three paragraphs of answer.
The first paragraph of complaint alleged that:
'On June 6, 1932, the defendant above named was then and there insolvent, and receivers were appointed for it, and on said date said defendant had on deposit with claimant, the sum of Two Hundred and Fifteen Thousand One Hundred and Seventy-six and 79/100 Dollars ($215,176.79) together with interest accrued thereon in the sum of One Hundred and Forty-one and 4/100 Dollars ($141.04).
'On said date said defendant was indebted to claimant on its certain certificate of deposit, a copy of which is attached, hereto, filed herewith, made a part hereof and marked 'Exhibit A,' dated January 2nd, 1932, in the principal sum of One Hundred and Eighty Thousand Dollars ($180,000.00), upon which there had accrued interest in the sum of Three Thousand One Hundred and Twenty Dollars ($3,120.00), and on which certificate of deposit there was due on July 1, 1932, the sum of Twenty five Thousand Dollars ($25,000.00) pursuant to a certain contract executed between said defendant and First and Tri State National Bank and Trust Company of Fort Wayne, and on said date said defendant was also indebted to claimant on its promissory note dated February 17, 1932, on which there was due the principal sum of Eighty-four Thousand and Eighty-five and 26/100 Dollars ($84,085.26), and accrued interest in the sum of One Thousand Six Hundred and Thirty-four and (38/100) Dollars ($1,634.38), and on said date said defendant was also indebted to claimant on a check in the sum of Eight Hundred and Sixteen and 20/100 Dollars ($816.20); that on said date claimant charged the account of said defendant on account of said certificate of deposit with the sum of One Hundred and Eighty-three Thousand One Hundred and Twenty Dollars ($183,120.00) and also charged the account of said defendant with the sum of Thirty-one Thousand Three Hundred and Eighty-one and 63/100 Dollars ($31,381.63), which it credited on said promissory note, and also charged said account with the additional sum of Eight Hundred and Sixteen and 20/100 ($816.20) Dollars on account of said check; that after the appointment of receivers for the defendant above named, a certain contract was entered into between them and claimant, a copy of which is filed herewith, attached hereto, made part hereof, and marked 'Exhibit B,' and which contract was approved by this court on July 26, 1932, by the terms whereof it was agreed that claimant should and actually did charge the said deposit account of said defendant with the sum of Eighty-four Thousand and Eighty-five and 26/100 Dollars ($84,085.26), and additional interest thereon of One Thousand Six Hundred ($1,600.00) Dollars for interest, and it was further agreed that said defendant should and it actually did, restore to the credit of said defendant and its receivers in said deposit account, the sum of One Hundred Thousand One Hundred and Eighty-one and 99/100 Dollars ($100,181.99).
'It was further provided by said contract between claimant and said receivers that claimant should have the right to retain the collateral security described in said contract and sell or otherwise dispose of the same in accordance with the terms of the contract by which the same was pledged as collateral, and apply the proceeds of the sale or collection or other disposition of the same, when and as received, against the unpaid balance of said certificate of deposit; that claimant did retain said collateral and there is attached hereto, made part hereof, filed herewith, and marked 'Exhibit C,' a detailed list of the collateral so held by it on June 8, 1932, which consists of collateral notes and mortgage notes, and on which exhibit there is shown the names of the makers of said notes, the principal amounts thereof, the description of any collateral pledged to the payment of said collateral notes, dates of the last payment of interest, and the balance due thereon all as of June 8, 1932; that claimant asserts that it has a first and prior lien upon and right to all of said notes described in Exhibit C and the collateral thereto, with the right to collect, sell or otherwise dispose of the same or any part thereof, all as collateral security for the payment of the balance due on said certificate of deposit hereinbefore described and interest thereon, and any claim against the defendant above named, including liability of said defendant on account of the guaranty executed by it in connection with the sale of mortgage notes, as hereinafter specifically described in claimant's second paragraph of claim, but that claimant is willing to surrender said collateral and notes or such part thereof as remain unpaid, upon the full payment of claimant's claim against the defendant, as set forth in this claim and the proper securing of the performance of the guaranty of the defendant on the mortgage notes purchased by claimant from defendant, as specifically set forth claimant's second paragraph of claim, and that by the filing of this claim, claimant does not, in any way, waive the right to collect, sell and/or dispose of any or all of said notes and collateral so described in said Exhibit C.
'That said certificate of deposit hereinbefore referred to, represents the unpaid balance of the purchase price of the banking building owned by said defendant, consisting of the following described real estate located in Allen County, Indiana, towit:
'The west twenty (20) feet of Lot One Hundred and Eight (108), and the north eighty-five (85) feet of Lot One Hundred and Seven (107), both in Original Plat of the city of Fort Wayne, being the parcel of land situated on the south east corner of Berry and Calhoun Streets, in said city, fronting eighty (80) feet on Berry Street and eighty-five (85) feet on Calhoun Street, known as the Tri State Building, or Citizens Trust Building; that said real estate was sold to said defendant by The Tri State Loan & Trust Company, to which Company certificates of deposit were originally issued evidencing the unpaid balance of the purchase price of said building, which certificates of deposit became the property of First and Tri-State National Bank and Trust Company of Fort Wayne by virtue of a consolidation between said Tri State Loan and Trust Company and First National Bank of Fort Wayne, and that the certificates of deposit remaining unpaid on June 24, 1932, and evidencing the then unpaid balance of the purchase price of said building, were sold by said First and Tri State National Bank and Trust Company of Fort Wayne to claimant, and that said certificate of deposit of January 2, 1932, in the principal sum of One Hundred and Eighty Thousand Dollars ($180,000.00) represented the then unpaid balance of said purchase price payments on account of said unpaid balance having been made from time to time after the original purchase of said building; that claimant claims to and does hold a vendor's lien upon said real estate above described, as security for the payment of the balance due upon said purchase price as represented by said certificate of deposit, and does not waive its said vendor's lien nor the right to enforce the same if the balance due upon said certificate of deposit, with interest, is not fully paid, which may be hereafter paid to the creditors of said defendant in this receivership.
'Wherefore, claimant prays that it be allowed a claim against the defendant above named on account of said certificate of deposit, in the sum of One Hundred and Eighty-five Thousand Dollars ($185,000.00), together with interest thereon at the rate of four per cent (4%) per annum from June 8, 1932, payable out of any assets or funds now or thereafter, in the possession of said receivers, and for all such other and further relief as may be just and proper.'
The third paragraph is in substance the same as the first except it is alleged that the real estate in question was subject to a mortgage lien held by the Northwestern Mutual Life Insurance Company to secure an indebtedness in the original amount of $220,000, and the prayer thereof is for $155,000, and its vendor's lien be foreclosed subject to said mortgage and that said real estate be sold subject to the mortgage for the payment of any balance remaining unpaid on said certificate of deposit after the application to the payment thereof of the proceeds of all other properties in the possession of said receivers properly applicable to such payment.
To the first and third paragraphs of claim the defendant filed three paragraphs of answer. The first being a general denial, the third a plea of payment, and the second states and avers a large part of the facts as set out in appellant's third paragraph of complaint. While the second paragraph of answer states that the appellant held the certificates...
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