preferred claim in Missouri

1918Learned counsel for appellant challenges the deduction drawn from this Bircher Case and claims that it is inconsistent with what was said by our Supreme Court in Harrison v. Smith, 83 Mo. 210 ; Stoller et al. v. Coates, 88 Mo. 514 ; Evangelical Synod of North America v. Schoeneich, 143 Mo. 652 , 45 S. W. 647 ; and Pundman et al. v. Schoenich, 144 Mo. 149 , 45 S. W. 1112 .

1898Harrison v. Smith, 83 Mo. 210 ; Green v. Conrad, 114 Mo. 651 ; Patterson v. Booth, 103 Mo. 402 .

1986Respondent herein is correct that the rule and the interpretation given the rule in State v. McClure, 632 S.W.2d 314 (Mo.App.1982) amounts to “sandbagging.” The Missouri Supreme Court should, and is hereby urged to, take up said rule and to revise the same along the line of the modernized federal rule.

1982Edney v. Smith, 425 F.Supp. 1038 (E.D.N.Y.1976), aff’d without opinion, 556 F.2d 556 (2nd Cir.1977), cert. denied, 431 U.S. 958 , 97 S.Ct. 2683 , 53 L.Ed.2d 276 (1977), but this case states that the preferred rule is the one advocated in this dissent, pointing out that the purpose of the psychiatric examination is to enable the lawyer to explore more effectively the available defenses.

1982Edney v. Smith, 425 F.Supp. 1038 (E.D.N.Y.1976), aff'd without opinion, 556 F.2d 556 (2nd Cir.1977), cert, denied, 431 U.S. 958 , 97 S.Ct. 2683 , 53 L.Ed.2d 276 (1977), but this case states that the preferred rule is the one advocated in this dissent, pointing out that the purpose of the psychiatric examination is to enable the lawyer to explore more effectively the available defenses.

1982Edney v. Smith, 425 F.Supp. 1038 (E.D.N.Y.1976), aff’d without opinion, 556 F.2d 556 (2nd Cir.1977), cert. denied, 431 U.S. 958 , 97 S.Ct. 2683 , 53 L.Ed.2d 276 (1977), but this case states that the preferred rule is the one advocated in this dissent, pointing out that the purpose of the psychiatric examination is to enable the lawyer to explore more effectively the available defenses.

1982Edney v. Smith, 425 F.Supp. 1038 (E.D.N.Y.1976), aff'd without opinion, 556 F.2d 556 (2nd Cir.1977), cert, denied, 431 U.S. 958 , 97 S.Ct. 2683 , 53 L.Ed.2d 276 (1977), but this case states that the preferred rule is the one advocated in this dissent, pointing out that the purpose of the psychiatric examination is to enable the lawyer to explore more effectively the available defenses.

1982Edney v. Smith, 425 F.Supp. 1038 (E.D.N.Y.1976), aff’d without opinion, 556 F.2d 556 (2nd Cir.1977), cert. denied, 431 U.S. 958 , 97 S.Ct. 2683 , 53 L.Ed.2d 276 (1977), but this case states that the preferred rule is the one advocated in this dissent, pointing out that the purpose of the psychiatric examination is to enable the lawyer to explore more effectively the available defenses.

1982Edney v. Smith, 425 F.Supp. 1038 (E.D.N.Y.1976), aff'd without opinion, 556 F.2d 556 (2nd Cir.1977), cert, denied, 431 U.S. 958 , 97 S.Ct. 2683 , 53 L.Ed.2d 276 (1977), but this case states that the preferred rule is the one advocated in this dissent, pointing out that the purpose of the psychiatric examination is to enable the lawyer to explore more effectively the available defenses.

1982Edney v. Smith, 425 F.Supp. 1038 (E.D.N.Y.1976), aff’d without opinion, 556 F.2d 556 (2nd Cir.1977), cert. denied, 431 U.S. 958 , 97 S.Ct. 2683 , 53 L.Ed.2d 276 (1977), but this case states that the preferred rule is the one advocated in this dissent, pointing out that the purpose of the psychiatric examination is to enable the lawyer to explore more effectively the available defenses.

1982Edney v. Smith, 425 F.Supp. 1038 (E.D.N.Y.1976), aff'd without opinion, 556 F.2d 556 (2nd Cir.1977), cert, denied, 431 U.S. 958 , 97 S.Ct. 2683 , 53 L.Ed.2d 276 (1977), but this case states that the preferred rule is the one advocated in this dissent, pointing out that the purpose of the psychiatric examination is to enable the lawyer to explore more effectively the available defenses.

1953Co. v. American Salpa Corp., 113 N. J.Eq. 468, 167 A. 755 , a New Jersey trial court chancellor permitted Delaware to establish its claim for corporate franchise taxes and allowed it as a preferred claim.

1939White v. Greenlee, 337 Mo. 514 , 520[3], 85 S.W.2d 112 , 116[4-6], covers "(b)," supra. In disallowing a preferred claim against the assets of a defunct county depositary on the contention the depositary bond was not binding on the bank, we said: "It is not shown in the record that the board of directors of the Eolia Bank authorized by resolution the execution of the bond, but absent such showing, right action will be presumed. [Citing authority.]" The mere receipt of the School District's funds made the Citizens Bank of Senath liable and the bond imposed no additional obligation on the Bank.

1939White v. Greenlee, 337 Mo. 514 , 520[3], 85 S.W.2d 112 , 116[4-6], covers "(b)," supra. In disallowing a preferred claim against the assets of a defunct county depositary on the contention the depositary bond was not binding on the bank, we said: "It is not shown in the record that the board of directors of the Eolia Bank authorized by resolution the execution of the bond, but absent such showing, right action will be presumed. [Citing authority.]" The mere receipt of the School District's funds made the Citizens Bank of Senath liable and the bond imposed no additional obligation on the Bank.

1939The sureties quote certain preliminary observations made arguendo in Marion County v. First Savings Bank, 336 Mo. 675 , 678[1], 80 S.W.2d 861 , 863[1-3], and stress the holding in Re Cameron Trust Co., 330 Mo. 1070 , 1075[2], 51 S.W.2d 1025 , 1026[2]: "The advertising for bids is a prerequisite to the authority of the school board to designate any bank or trust company a depositary of the funds of the district.

1939The sureties quote certain preliminary observations made arguendo in Marion County v. First Savings Bank, 336 Mo. 675 , 678[1], 80 S.W.2d 861 , 863[1-3], and stress the holding in Re Cameron Trust Co., 330 Mo. 1070 , 1075[2], 51 S.W.2d 1025 , 1026[2]: "The advertising for bids is a prerequisite to the authority of the school board to designate any bank or trust company a depositary of the funds of the district.

1939The sureties quote certain preliminary observations made arguendo in Marion County v. First Savings Bank, 336 Mo. 675 , 678[1], 80 S.W.2d 861 , 863[1-3], and stress the holding in Re Cameron Trust Co., 330 Mo. 1070 , 1075[2], 51 S.W.2d 1025 , 1026[2]: "The advertising for bids is a prerequisite to the authority of the school board to designate any bank or trust company a depositary of the funds of the district.

1939The sureties quote certain preliminary observations made arguendo in Marion County v. First Savings Bank, 336 Mo. 675 , 678[1], 80 S.W.2d 861 , 863[1-3], and stress the holding in Re Cameron Trust Co., 330 Mo. 1070 , 1075[2], 51 S.W.2d 1025 , 1026[2]: "The advertising for bids is a prerequisite to the authority of the school board to designate any bank or trust company a depositary of the funds of the district.

1939Banking Co., 227 Mo. App. 543 , 545, 55 S.W.2d 699 , 700[1].] Hence, there was no consideration to support the obligation of the sureties on the bond, and the School District's action with respect to a preferred claim against the Bank's estate is inconsistent with its suit on the bond against the sureties.

1939Banking Co., 227 Mo. App. 543 , 545, 55 S.W.2d 699 , 700[1].] Hence, there was no consideration to support the obligation of the sureties on the bond, and the School District's action with respect to a preferred claim against the Bank's estate is inconsistent with its suit on the bond against the sureties.

1939White v. Greenlee, 337 Mo. 514 , 520[3], 85 S.W.2d 112 , 116[4-6], covers "(b)," supra. In disallowing a preferred claim against the assets of a defunct county depositary on the contention the depositary bond was not binding on the bank, we said: "It is not shown in the record that the board of directors of the Eolia Bank authorized by resolution the execution of the bond, but absent such showing, right action will be presumed. [Citing authority.]" The mere receipt of the School District's funds made the Citizens Bank of Senath liable and the bond imposed no additional obligation on the Bank.

1939White v. Greenlee, 337 Mo. 514 , 520[3], 85 S.W.2d 112 , 116[4-6], covers "(b)," supra. In disallowing a preferred claim against the assets of a defunct county depositary on the contention the depositary bond was not binding on the bank, we said: "It is not shown in the record that the board of directors of the Eolia Bank authorized by resolution the execution of the bond, but absent such showing, right action will be presumed. [Citing authority.]" The mere receipt of the School District's funds made the Citizens Bank of Senath liable and the bond imposed no additional obligation on the Bank.

1939His collections were trust funds in the collector's hands, but until they were paid over to the City Treasurer, they did not come within the designation, made in the escrow agreement, of the funds thereby secured. [2] It is said, in the City's brief, that "either the depository agreement expressly includes the funds deposited by the Collector, or, if it does not, then the Bank became possessed of the funds illegally and the City is entitled to a preference." However, it has been expressly held that deposit of tax collections, in a bank by a city collector, whether it be the city depository or

1939His collections were trust funds in the collector's hands, but until they were paid over to the City Treasurer, they did not come within the designation, made in the escrow agreement, of the funds thereby secured. [2] It is said, in the City's brief, that "either the depository agreement expressly includes the funds deposited by the Collector, or, if it does not, then the Bank became possessed of the funds illegally and the City is entitled to a preference." However, it has been expressly held that deposit of tax collections, in a bank by a city collector, whether it be the city depository or

1936For example in the cases of City of Doniphan v. Cantley, 330 Mo. 639 , 50 S.W.2d 658 , and Consolidated School District v. Gower Bank, 53 S.W.2d 280 , the plaintiffs sued to have a preferred claim allowed against the assets of defunct banks.

1936For example in the cases of City of Doniphan v. Cantley, 330 Mo. 639 , 50 S.W.2d 658 , and Consolidated School District v. Gower Bank, 53 S.W.2d 280 , the plaintiffs sued to have a preferred claim allowed against the assets of defunct banks.

1933"The right of subrogation does not necessarily rest in contract or priority, but upon principles of natural equity, and does not depend upon the act of the creditor, but may be independent of him and also of the debtor." [37 Cyc. 366-7; State Savings Trust Co. v. Spencer, 201 S.W. 967 , 969; Berry v. Stigall, 253 Mo. 690 ; Davenport v. Timonds, 157 Mo. App. 360 , 365, 366.] "The doctrine of subrogation, under the initial guidance of Chancellor KENT, has been applied much more extensively in American than in English jurisprudence.

1933Under the doctrine as it stands, it is broad enough to include every instance in which one person pays the debt of another for which the other is primarily liable and should in good conscience have been paid by the other, provided, of course, that there are circumstances present which take the transaction out of the sphere of a purely volunteer payment. [Gersta Corp. v. Equitable Trust Co., 241 N.Y. 418 , 150 N.E. 501 ; United States Fidelity, etc., v. Branwell, 108 Or. 261 , 217 P. 332 .] There can be no doubt but what the Weldon estate would have been entitled to a preferred claim for the am

1933Under the doctrine as it stands, it is broad enough to include every instance in which one person pays the debt of another for which the other is primarily liable and should in good conscience have been paid by the other, provided, of course, that there are circumstances present which take the transaction out of the sphere of a purely volunteer payment. [Gersta Corp. v. Equitable Trust Co., 241 N.Y. 418 , 150 N.E. 501 ; United States Fidelity, etc., v. Branwell, 108 Or. 261 , 217 P. 332 .] There can be no doubt but what the Weldon estate would have been entitled to a preferred claim for the am

1933The ease should and will be treated as though the county court had not selected the bank for a second term. [Boone County v. Cantley, Commissioner of Finance, 330 Mo. 911 , 51 S. W. (2d) 56, 58 .] The agreed statement of facts also shows that all1 of the $24,500 for which the county is asking a preferred claim consists of deposits made by the county on and prior to May 29, 1931.

1933The ease should and will be treated as though the county court had not selected the bank for a second term. [Boone County v. Cantley, Commissioner of Finance, 330 Mo. 911 , 51 S. W. (2d) 56, 58 .] The agreed statement of facts also shows that all1 of the $24,500 for which the county is asking a preferred claim consists of deposits made by the county on and prior to May 29, 1931.

1933"The right of subrogation does not necessarily rest in contract or priority, but upon principles of natural equity, and does not depend upon the act of the creditor, but may be independent of him and also of the debtor." [37 Cyc. 366-7; State Savings Trust Co. v. Spencer, 201 S.W. 967 , 969; Berry v. Stigall, 253 Mo. 690 ; Davenport v. Timonds, 157 Mo. App. 360 , 365, 366.] "The doctrine of subrogation, under the initial guidance of Chancellor KENT, has been applied much more extensively in American than in English jurisprudence.

1933Under the doctrine as it stands, it is broad enough to include every instance in which one person pays the debt of another for which the other is primarily liable and should in good conscience have been paid by the other, provided, of course, that there are circumstances present which take the transaction out of the sphere of a purely volunteer payment. [Gersta Corp. v. Equitable Trust Co., 241 N.Y. 418 , 150 N.E. 501 ; United States Fidelity, etc., v. Branwell, 108 Or. 261 , 217 P. 332 .] There can be no doubt but what the Weldon estate would have been entitled to a preferred claim for the am

1933Under the doctrine as it stands, it is broad enough to include every instance in which one person pays the debt of another for which the other is primarily liable and should in good conscience have been paid by the other, provided, of course, that there are circumstances present which take the transaction out of the sphere of a purely volunteer payment. [Gersta Corp. v. Equitable Trust Co., 241 N.Y. 418 , 150 N.E. 501 ; United States Fidelity, etc., v. Branwell, 108 Or. 261 , 217 P. 332 .] There can be no doubt but what the Weldon estate would have been entitled to a preferred claim for the am

1932Bank of Cabool, 21 S.W.2d 781 .] The test applied in Missouri may be stated as follows: If the representatives of an insolvent estate come into possession *Page 869 of assets that have been augmented by reason of the misappropriation of trust funds, then a court of equity will allow the cestui que trust, or his representative, a preferred claim to the extent that it can be shown that the trust funds have enriched the assets and no more.

1932This doctrine also applies to a trustee ex maleficio; in this case the Dade County Bank. [In re Linn County Bank, 1 S.W.2d l.c. 209 (4, 5); Horigan Realty Co. v. Flynn, 253 S.W. 403 ; Nichols v. Bank of Syracuse, 278 S.W. 793 .] The law permits the cestui que trust to recover the amount misappropriated to the extent that it has enriched the assets of the trustee, on the theory that the estate came into the possession of the trust property unlawfully, and that in equity the cestui que trust is entitled to it as against the general creditors.

1932This doctrine also applies to a trustee ex maleficio; in this case the Dade County Bank. [In re Linn County Bank, 1 S.W.2d l.c. 209 (4, 5); Horigan Realty Co. v. Flynn, 253 S.W. 403 ; Nichols v. Bank of Syracuse, 278 S.W. 793 .] The law permits the cestui que trust to recover the amount misappropriated to the extent that it has enriched the assets of the trustee, on the theory that the estate came into the possession of the trust property unlawfully, and that in equity the cestui que trust is entitled to it as against the general creditors.

1931Both the Poplar Bluff case and the Federal Reserve Bank- case, following and quoting from Federal Reserve Bank of Richmond v. Peters, 139 Va. 45 , 123 S. E. 379 , 42 A. L.

1931Both the Poplar Bluff case and the Federal Reserve Bank- case, following and quoting from Federal Reserve Bank of Richmond v. Peters, 139 Va. 45 , 123 S. E. 379 , 42 A. L.

1928Tucker, the judgment debtor. [Allumet v. Leeper, 48 Mo. 319 ; Stratmore v. Clark, 70 Mo. 571 .] The judgment, however, was a preferred claim against Tucker’s estate and, in addition to that remedy, plaintiff had the right to enforce the lien of the judgment against real estate by a bill in equity, which course plaintiff followed when this suit was instituted. [Griswold v. Johnson, 22 Mo. App. 466 .] Such a suit, however, is not recognized by our statutes and we are unable to find any authority for holding that the bringing of a suit of this character would take the place of a scire facias and

1928Compton Co. et al. v. Farmer's Trust Co. of Grant City et al., 279 S.W. 746 , 749.] This holding is bottomed on the theory that all creditors of an insolvent debtor must stand on equal footing and share the assets of their insolvent debtor ratably, unless creditors seeking preference show that the insolvent debtor has in his possession funds, which in equity belong to them, and not to the insolvent debtor.

1928Tucker, the judgment debtor. [Allumet v. Leeper, 48 Mo. 319 ; Stratmore v. Clark, 70 Mo. 571 .] The judgment, however, was a preferred claim against Tucker’s estate and, in addition to that remedy, plaintiff had the right to enforce the lien of the judgment against real estate by a bill in equity, which course plaintiff followed when this suit was instituted. [Griswold v. Johnson, 22 Mo. App. 466 .] Such a suit, however, is not recognized by our statutes and we are unable to find any authority for holding that the bringing of a suit of this character would take the place of a scire facias and

1926It is the ride that where one who is entitled to re *822 seind a sale chooses to file the claim in bankruptcy, based upon the obligation purchased, this amounts to an election to .affirm the purchase, and he may not thereafter sue in equity for a rescission. [See Black on Rescission, see. 562.] Upon discovery of his right to rescind he must announce his purpose to do so, and adhere to it. [In re Kenyon et al., 156 Fed. 863 ; Scott v. Abbott, 160 Fed. 573 .] Moreover the evidence shows that plaintiff did not succeed in proving up its own second deed of trust as a preferred claim but merely as a

1926It is the ride that where one who is entitled to re *822 seind a sale chooses to file the claim in bankruptcy, based upon the obligation purchased, this amounts to an election to .affirm the purchase, and he may not thereafter sue in equity for a rescission. [See Black on Rescission, see. 562.] Upon discovery of his right to rescind he must announce his purpose to do so, and adhere to it. [In re Kenyon et al., 156 Fed. 863 ; Scott v. Abbott, 160 Fed. 573 .] Moreover the evidence shows that plaintiff did not succeed in proving up its own second deed of trust as a preferred claim but merely as a

1918Learned counsel for appellant challenges the deduction drawn from this Bircher Case and claims that it is inconsistent with what was said by our Supreme Court in Harrison v. Smith, 83 Mo. 210 ; Stoller et al. v. Coates, 88 Mo. 514 ; Evangelical Synod of North America v. Schoeneich, 143 Mo. 652 , 45 S. W. 647 ; and Pundman et al. v. Schoenich, 144 Mo. 149 , 45 S. W. 1112 .

1918Learned counsel for appellant challenges the deduction drawn from this Bircher Case and claims that it is inconsistent with what was said by our Supreme Court in Harrison v. Smith, 83 Mo. 210 ; Stoller et al. v. Coates, 88 Mo. 514 ; Evangelical Synod of North America v. Schoeneich, 143 Mo. 652 , 45 S. W. 647 ; and Pundman et al. v. Schoenich, 144 Mo. 149 , 45 S. W. 1112 .