St. Louis Brewing Ass'n v. Austin

• Decision Date: 07 November 1893
• Citation: 100 Ala. 313,13 So. 908
• Court: Alabama Supreme Court
• Parties: ST. LOUIS BREWING ASS'N v. AUSTIN. HANCOCK ET AL. v. SAME.

13 So. 908

100 Ala. 313

ST. LOUIS BREWING ASS'N v. AUSTIN.

HANCOCK ET AL. v. SAME.

Supreme Court of Alabama

November 7, 1893

Appeal from chancery court, Colbert county; Thomas Cobbs Chancellor.

Bills by the St. Louis Brewing Association and Hancock Bros. & Co. respectively, against R. W. Austin, as receiver of the First National Bank of Sheffield, to have a trust declared in favor of complainants in the assets of the bank. Dismissed. Complainants appeal. Affirmed.

Roulhac & Nathan, for appellants.

D. D Shelby, for appellee.

McCLELLAN J.

These cases involve substantially the same questions, and were submitted together. The bill in each of them seeks to have a trust declared in favor of the complainants upon the assets of the suspended First National Bank of Sheffield, which are not in the hands of, and being administered by, the respondent, as receiver of said bank, by appointment of the comptroller of the treasury. The facts in the brewing company's case are, or may be conceded to be, the following: During the month of November, 1889, said bank in various ways represented itself, for the purpose of inducing collections and deposits, to be solvent, in a perfectly sound condition, and to be doing a good and safe and paying business. These representations were made to the complainant for the purpose stated by its president and cashier, and were acted on by complainant by way of depositing in said bank the money which is now sought to be recovered. The representations were wholly false, and known to be so by the president and cashier when they were made. The bank was utterly insolvent, and these officers knew it. It was in a failing condition at the time, to the knowledge of these officers, and actually failed on the 29th day of the month. With full knowledge of this state of affairs, the bank officers named, and who were managing the concern, induced the complainant to make the deposit, and they received the deposit, and converted the money to the uses of the bank. These are also the facts of the case on this point of Hancock Bros. & Co., except that the bank made a collection for them and converted the money to its own use, sending complainants a worthless check for the amount. We will concede that, so far as the right of the complainants to fasten a preference lien in the nature of a trust on the assets of the bank depends upon the fraud of the bank and its officials, their cases are made out on the facts we have stated; and if they had further shown that the identical money which was deposited by and collected for them respectively had come to the hands of the receiver, and was held by him in specie at the time of bills filed, or that their funds had been mingled with the funds of the bank which came to the receiver's hands, and constituted in part the gross sum held by him, or that their identical money had been invested by the bank in tangible property which came to the hands of the receiver, and was held by him, they would have been entitled to the relief they seek. But just here is where the cases fail. It is not shown that the receiver has or ever had their funds either segregated from or as constituting in part the money of the bank in his hands, and it is not shown that any property in which their funds were invested is now held by the receiver, or ever...