Opinion
No. 6886.
February 26, 1934.
Appeal from the District Court of the United States for the Western District of Texas; Charles A. Boynton, Judge.
Proceeding by the Pecos County State Bank, claimant, opposed by F.M. Lynch, receiver of the First National Bank of Fort Stockton, Tex. From a judgment allowing a claim against the receiver as an ordinary debt but denying a preference, the claimant appeals.
Affirmed.
James Cornell, of San Angelo, Tex., for appellant.
Thornton Hardie, of El Paso, Tex., for appellee.
Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.
This is an appeal from a judgment allowing a claim of $2,773.43 against the receiver of a national bank as an ordinary debt to be paid in the course of the liquidation, but denying a preference. The facts are not in dispute. So far as material, they are these:
The Pecos County State Bank and the First National Bank of Fort Stockton were located at Fort Stockton, Texas. The First National Bank closed its doors on October 5, 1931, and on October 13, 1931, Lynch was appointed receiver. Prior thereto, on October 1, 1931, in the clearance of checks drawn by depositors of the said banks there was a balance in favor of the state bank of $527.69. In payment of this the national bank gave a draft on the San Angelo National Bank at San Angelo, Tex. On October 3, 1931, there was a similar balance of $2,247.74, for which the national bank gave a draft on the Republic Bank Trust Company of Dallas, Tex. Neither draft was paid because before it was presented the First National Bank had closed its doors. There were sufficient funds on deposit with the respective banks on which they were drawn to pay the drafts. Subsequently, the receiver realized more from these deposits than the amounts of the drafts. It is not shown what amount of cash the First National had in its possession when it became insolvent or how much cash the receiver obtained when he took charge.
The state bank had the right to demand cash in its settlements, but, as it took drafts in payment, the relation of simple debtor and creditor was established. No trust was created, and the drafts were not assignments of the funds in the banks upon which drawn creating a trust or establishing a lien on those funds. The judgment of the District Court denying preferential payment was right. Spurway v. Frick Co. (C.C.A.) 63 F.2d 875; Central Texas Exch. Nat. Bank of Waco v. First National Bank of Waco (Tex.Civ.App.) 243 S.W. 998.
Affirmed.