Union Planters Nat. Bank v. Biggs
| Decision Date | 09 April 1937 |
| Citation | 18 F. Supp. 894 |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | UNION PLANTERS NAT. BANK v. BIGGS. |
Hoyle & Hoyle, of Greensboro, N. C., for plaintiff.
Shuping & Hampton, of Greensboro, N. C., and Thomas L. Turner, Jr., of High Point, N. C., for defendant.
This was a suit started in the state court to establish a trust fund and decree the claim of the plaintiff a preferred claim and have an order to compel the receiver to allow same as such and to pay it out of the funds in his hands. On motion of the defendant the cause was removed to this court and tried upon facts stipulated in the record, supplemented by testimony of the receiver.
The plaintiff had on general deposit at the Commercial National Bank the sum of $5,531.34 and, on the 7th day of January caused to be presented a check for payment in the sum of $3,000, but payment was refused not only on this check but on all other general deposits because, by action of the directors, all the assets in the bank were frozen. The Comptroller of the Currency took charge of the bank on the 18th day of January, 1932, and appointed John D. Biggs as receiver. The bank had liabilities of $9,000,000 and had $52,840.08 in cash on January 7, 1932, which funds were turned over to John D. Biggs, receiver.
On April 26, 1932, the plaintiff filed with the defendant its proof of claim as a common claim in the sum of $5,531.34 which was allowed, and thereafter dividends were paid on said claim on May 29, 1932, 15 per cent., $829.70; February 24, 1934, 10 per cent., $553.13; November 7, 1934, 10 per cent., $553.13 — making a total of $1,935.96.
On the 4th day of October, 1935, the plaintiff filed with the defendant an amendment to its proof of claim requesting that it be allowed a preference on that portion of its entire claim represented by the $3,000 check. The suit was commenced on the 14th day of January, 1936.
The plaintiff claims that the refusal of the bank to pay the $3,000 check on January 7th made it a wrongdoer, and that a trust ex maleficio arose, and that thereafter the bank held the $3,000 in money as a trustee for the benefit of the plaintiff, and that this sum actually passed on into the hands of the receiver.
Since the transaction did not augment the assets in the hands of the bank, it is impossible for the complainant to make good a claim to the funds in the hands of the receiver. The federal statute (12 U.S.C.A. § 194) dealing with insolvent national banks requires a ratable distribution of its assets among the creditors of the bank. Swan v. Children's Home Society of West Virginia, 67 F. (2d) 84, 88 (C.C.A.4); Texas & Pacific Railway v. Pottorff, 291 U.S. 245, 54 S. Ct. 416, 78 L.Ed. 777.
It is necessary for a claimant to a fund in the hands of a national bank receiver to establish three things if he can obtain preferential payment, namely,...
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