State ex rel. Sorensen v. Neb. State Sav. Bank of Wahoo
| Decision Date | 01 June 1934 |
| Docket Number | No. 28920.,28920. |
| Citation | 255 N.W. 52,127 Neb. 262 |
| Parties | STATE EX REL. SORENSEN, ATTY. GEN., v. NEBRASKA STATE SAV. BANK OF WAHOO (GORANSON ET AL., INTERVENERS). |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Generally, a thief can acquire no title to stolen property, nor can title to personal property be acquired through another's larceny or theft.
2. If bonds having a legal inception and payable to bearer or blank as to payee, or payable to order and indorsed in blank, and otherwise conforming to the statutory requirements as to negotiable instruments, are negotiated after a theft thereof from the true owner, the purchaser or transferee of such bonds acquires a good title thereto as against the true owner only if purchased before maturity, in good faith, and for a valuable consideration, or under such circumstances as will constitute such purchaser a holder in due course as defined by the Nebraska Negotiable Instruments Act.
3. Evidence examined, and held to establish that intervener Minnie M. Jansa, executrix, was not the holder in due course of the coupon bond in suit.
Appeal from District Court, Saunders County; Landis, Judge.
Proceedings by the State, on the relation of C. A. Sorensen, Attorney General, against the Nebraska State Savings Bank of Wahoo, wherein John D. Goranson and Minnie M. Jansa, executrix of the estate of Anton Jansa, deceased, separately intervened. From an order overruling a motion for a new trial, John D. Goranson appeals.
Order reversed, and cause remanded, with directions.
J. H. Barry, of Wahoo, for appellant.
E. S. Schiefelbein, of Wahoo, for appellee.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY, and PAINE, JJ., and MESSMORE, District Judge.
It may be said that prior to May 10, 1930, the Nebraska State Savings Bank, hereinafter referred to, and the Saunders County National Bank were engaged in banking business at Wahoo, Nebraska. These institutions occupied the same banking rooms and the same persons were the executive officers of each. Both banks became insolvent and closed their doors on the same day. On the date above mentioned, in a proceeding in the district court for Saunders county, because of insolvency, a receiver was duly appointed, who thereupon qualified and took over the business and property of the Nebraska State Savings Bank. On March 17, 1931, Minnie M. Jansa, as executrix of the estate of Anton Jansa, filed in this receivership proceeding her petition of intervention. In this pleading she alleged in substance that her decedent, Anton Jansa, had, in his lifetime, on July 7, 1928, “for a good and valuable consideration, in due course of business and before maturity, purchased” a certain real estate bond and note payable to the Nebraska State Savings Bank, identified as MN-853, in the sum of $3,000, dated February 1, 1926, together with interest coupons numbered 5 and 6 of even date, in the sum of $150 each, together with a half interest or share in a certain real estate mortgage securing the same, dated February 1, 1926, due November 1, 1931, duly recorded in the office of the register of deeds of Saunders county in book 43 at page 621 of the mortgage records of that county, which instrument last referred to described and mortgaged to the Nebraska State Savings Bank the east half of the southeast quarter of section 34, township 14, north of range 5, east of the 6th p. m.; that both the real estate bond and the mortgage were duly executed by Wilhelmina Hruby, a widow, and that Anton Jansa paid $3,060.54 therefor. This intervener further alleged that the Nebraska State Savings Bank had theretofore failed to execute a proper assignment of mortgage, and further alleged that intervener is now the owner and in possession of the above described mortgage note and bond, and prayed that the receiver of the Nebraska State Savings Bank be directed to execute a proper assignment of mortgage to petitioner, and for general equitable relief.
On June 2, 1931, John D. Goranson also filed in said receivership proceeding his petition in intervention and answer to the petition of Minnie M. Jansa. This pleading sets forth at length the execution and delivery to the Nebraska State Savings Bank by Wilhelmina Hruby of two certain real estate mortgage coupon bonds numbered, respectively, MN-853 and MN-853-1, each being in the sum of $3,000, bearing date of February 1, 1926, and both being secured by one real estate mortgage, also executed by Mrs. Hruby, covering the east half of the southeast quarter of section 34, township 14, north of range 5, east of the 6 p. m., in Saunders county, which mortgage was duly recorded; that on April 12, 1926, the Nebraska State Savings Bank of Wahoo, Nebraska, sold, assigned and delivered to this intervener one of the original real estate mortgage bonds above described, together with interest coupons thereto attached, all duly indorsed in blank, said original bond being numbered MN-853, for which this intervener then and there paid the Nebraska State Savings Bank the sum of $3,000 with accrued interest, from which date this intervener has been the owner of said mortgage coupon bond and the coupons attached. This intervener sets forth in his pleading a copy of a certificate in writing of the purchase of bond of $3,000 by him, executed by the officers of the Saunders County National Bank, and further alleges that such bond and coupons attached thereto were deposited by him at the time of purchase thereof with the Nebraska State Savings Bank, and that this intervener has never parted with his right, title and interest and ownership thereof; denies each and every allegation in the petition in intervention filed by Minnie M. Jansa, executrix; prays that he may be determined to be the owner of real estate bond MN-853, that Minnie M. Jansa, as executrix, may be required to deliver said bond to him, that the receiver of the Nebraska State Savings Bank may be required to deliver to him a suitable assignment of mortgage, and for general equitable relief.
To these pleadings the receiver filed an answer setting forth that there were five claimants for the four bonds designated in the record as MN-853, MN-853-1, MN-854, MN-854-1, of $3,000 each, all of said bonds being executed by Wilhelmina Hruby, secured by mortgage on land in Saunders county, Nebraska; that the receiver claims no interest in any of these bonds, and asks that claimants be required to fully establish ownership and possession of said mortgage bonds to the satisfaction of the court.
The cause was heard by the district court as an equitable proceeding, and the result was a finding and judgment for Minnie M. Jansa, as executrix of the estate of Anton Jansa, determining that she was the owner of real estate bond designated as MN-853 and entitled to receive the assignment of mortgage prayed. From the order of the district court overruling his motion for a new trial, John D. Goranson prosecutes this appeal.
The controlling question for determination on this hearing de novo is the ownership at the present time of real estate bond MN-853.
The evidence of Minnie M. Jansa is that after the death of her father, upon her appointment and qualification as executrix of his estate, after January 1, 1930, and before the closing of the Nebraska State Savings Bank, she called at that institution and made demand for her father's papers; that such papers were then turned over to her; that among the papers turned over to her was exhibit A, which is a negotiable instrument designated on its face as “coupon bond,” datedFebruary 1, 1926, due November 1, 1931, for the sum of $3,000, signed by Wilhelmina Hruby and payable to the Nebraska State Savings Bank of Wahoo, Nebraska. It is numbered MN-853, and is indorsed:
On the back of this instrument appears the notation:
There is also introduced in evidence a debit slip for $3,000 on which appears the words, A ledger sheet was introduced showing “A. Jansa” checking account with the Saunders County National Bank. This discloses that some time between April 7, 1928, and April 19, 1929, $3,000 was withdrawn from his account. So far as disclosed by the record no other payment was made by Anton Jansa for this bond.
Testifying from the loan register of the savings bank we have F. J. Kirchman stating that, from the loan register in which the entries thereof were identified as made either by himself or under his direction, coupon bond MN-854-1 for $3,000 was also executed by Mrs. Hruby; that this bond (MN-854-1) was originally owned by and made payable to the Nebraska State Savings Bank; that it was sold to Colon on March 29, 1926, then bought back from Colon a few days later by the Saunders County National Bank; that on July 12, 1926, it was sold to the Bank of Yutan; that on January 3, 1927, it was sold to the Farmers' & Merchants' Bank of Prague; that on March 7, 1928, it was taken back from the Farmers' & Merchants' Bank of Prague by the Saunders County National Bank; that on July 7, 1928, it was charged to Anton Jansa.
Further, witness F. J. Kirchman testifies: ...
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