State v. State Bank of Wahoo

• Decision Date: 04 December 1894
• Citation: 61 N.W. 252,42 Neb. 896
• Parties: STATE v. STATE BANK OF WAHOO.
• Court: Nebraska Supreme Court

42 Neb. 896

61 N.W. 252

STATE

v.STATE BANK OF WAHOO.

Supreme Court of Nebraska.

Dec. 4, 1894.

Syllabus by the Court.

Kingsley loaned Baum $2,000, secured by a mortgage on real estate. Ladenburger had sold the real estate to Baum, and he borrowed this money to pay for it. The cashier of the Bank of Wahoo negotiated the loan for Baum, and by agreement between Baum, Ladenburger, and the cashier, the latter was to receive from Kingsley the proceeds of the loan, and pay the same over to Ladenburger. About November 1, 1892, the cashier received the draft, and collected it, but, on Ladenburger's demanding the money, falsely alleged there was a defect in the title to the real estate, and claimed the right to hold the money until such defect should be cured. Ladenburger consented to this. December 31, 1892, the cashier mailed to Ladenburger a certificate of deposit reciting that the latter had deposited in the bank the Kingsley money, payable to the order of himself “in person,” and on return of the certificate indorsed, “when the land title to Baum is straightened out.” January 23, 1893, the bank was found to be insolvent, and, at the suit of the attorney general, placed in the hands of a receiver. Ladenburger demanded of the receiver the payment of his claim in full as a preferred claim. Held:

1. The controlling--the test--question in the case is, was Ladenburger a voluntary creditor of the bank? Was the relation subsisting between them that of ordinary depositor and banker?

2. That the agreement of the parties that the cashier should negotiate the loan, and receive the proceeds thereof for Ladenburger, did not make the latter a voluntary creditor or depositor of the bank.

3. One may involuntarily become the creditor of another, but, from the very nature of things, the relation of banker and depositor can be created only by consent of both parties.

4. If A., without the knowledge of B., deposits a sum of money in a bank, to the latter's credit, then, until B. shall be informed thereof, and expressly or by implication recognize the deposit as such, the bank will hold such money in trust for B., and not as his banker.

5. That the false representation of the cashier that there was a defect in the title to the real estate, and that he was holding Ladenburger's money until such defect should be cured, was a fraud on the latter, and his conduct in permitting the cashier to retain the money for the purpose alleged should not be construed into an intention or a consent on his part to become a depositor of the bank.

6. That the certificate of deposit was, under the circumstances, nothing more than an acknowledgment in writing that the bank held the proceeds of the Kingsley loan for Ladenburger, and would pay the same to him when the title to the real estate should be perfected; and the mere holding of this certificate of deposit by Ladenburger was not, of itself, sufficient evidence to establish that he thereby recognized himself as a depositor of the bank.

7. That to make one a depositor of a bank, and, in case of its insolvency, to limit such person's rights against the assets thereof to those of an ordinary creditor, it must appear that such person became a depositor of such bank voluntarily.

8. That the title to the money received by the bank from Kingsley for Ladenburger was held in trust by the bank for him, and the title to such money did not pass to the receiver.

9. That, when a fund is once impressed with the character of a trust, such trust character continues until changed by the consent of the beneficiary.

10. That Ladenburger was entitled to have his claim paid as a preferred claim.

Original action by the state against the insolvent State Bank of Wahoo, under the banking act. Opinion on application for preferred claim by Moriz Ladenburger.Good & Good, for Ladenburger, petitioner.

George H. Hastings, Atty. Gen., for the State.

RAGAN, C.

About October 1, 1892, Moriz Ladenburger sold some real estate situate in Saunders county, Neb., to John Ladenburgerand Fritz Baum, hereinafter called the “purchasers.” In order to make payment in full for the real estate, the purchasers applied to W. H. Dickinson, the proprietor and cashier of the State Bank of Wahoo--a banking institution situate in said county--to procure for them a loan of $2,000, to be secured by a mortgage on said real estate. Dickinson undertook to procure one Kingsley to make the loan. The purchasers executed the proper mortgage, which was duly recorded, and by agreement between them and Dickinson and Moriz Ladenburger the $2,000, when advanced by Kingsley on the mortgage, Dickinson was to turn over to Moriz Ladenburger in payment of the balance due him from the purchasers of his real estate. About November 1, 1892, Dickinson received from Kingsley a draft for $2,000, being the loan made by the latter to the purchasers. Dickinson appears to have collected the money on this draft, or cashed it, about the time he received it. Moriz Ladenburger, soon after the receipt of the draft by Dickinson, demanded of him the money which Kingsley had loaned the purchasers; but Dickinson refused to pay over the money, alleging, as a ground therefor, that there was some defect in the title of the real estate mortgaged to Kingsley, and claimed the right to hold said money until such defect should be cured, and for such alleged purpose did retain said money,--Moriz Ladenburger, it would seem, consenting thereto. It does not appear, however, that Moriz Ladenburger knew at this time that the money which Kingsley had furnished the purchasers was sent to Dickinson in a draft; and, as matter of fact, there...