Bank of Indiahoma v. Simpson

*610 Opinion of the court by IrwiN, J.: The only ’ assignment of error relied upon by the plaintiff in error to reverse this case, is that the findings of fact and conclusion of law of the referee were not supported by the evidence, and were erroneous as legal conclusions. We have examined the stipulation of facts and the record of the proceedings in the case as presented to the referee, and find that the record shows that on the 29th day of August, 1902 J. O. Gilmore, and O. B. Gilmore borrowed the sum of five hundred dollars from the plaintiff in error, the Bank of Indiahoma, and gave to the bank a note and mortgage. At the time of the execution of said mortgage, there was an agreement by the said Gilmore, and the president of said bank, on behalf of said bank, that the goods covered by said mortgage should be sold in the usual course of retail trade, with the understanding and agreement that the expenses of said business should be deducted and the remainder of the proceeds of the sale accounted for to the defendant and applied upon this indebtedness. 'That the said mortgage was not recorded until the 30th day of January, 1903, at 1 .TO P. M. The record further shows that on the 28th day of January 1903, the said Gilmore was indebted to M. S. Simpson for goods and merchandise sold him, in the sum of-$425.72. That to secure the payment of said amount, he, on that date, executed a note and chattel mortgage to said M. S. Simpson. That on the 29tb day of January, and before the mortgage to the bank was recorded, said Simpson, with the consent of said Gilmore, took possession of the mortgage property. That thereupon the bank brought an action of replevin against Simpson' to ¡recover these goods, on the *611 strength of their mortgage. This action was brought in the probate court of Comanche county, and resulted in a judgment in favor of Simpson, for a return of the property, or in the event that cannot be done, for the value thereof, fixed at $334.62. That from this judgment, an appeal was taken by the bank to the district court of Comanche county. That afterwards, the said appeal was regularly dismissed in said court. The record further discloses that the bank having-secured the possession of the property by a writ of replevin, sold the same and collected the proceeds thereon in the month of June, 1903. That on the 2nd day of July, 1903, the bank became insolvent, and passed into the hands of a receiver regularly appointed by the court, who immediately took possession of the property and assets of the bank, but the record and stipulation of fact does not show that any of the proceeds of the sale was received by the receiver, or came into his hands. These facts were all set up in the record before the probate court and in the stipulation filed with the referee, and upon this state of facts, the referee found as a conclusion of law that the defendant in error, Simpson, was a preferred creditor, and his was a preferred claim as against the assets of the insolvent bank in the hands of the receiver. It is claimed by attorneys for plaintiff in error that as it was not clearly shown that the identical property, or the proceeds thereof passed into the hands of the receiver, or that as the money received from the sale of the goods which the court held belonged to Simpson were intermingled with other money in the bank so as to not be distinguishable, it cannot he treated as a preferred claim. We think this contention is a correct conclusion of law as held by this court in the case of Charles T. Cherry v. The *612 Territory, reported in this volume, opinion written by Justice Burwell, at the June term, filed September 5th, 1906. This court in that case, says: “The evidence wholly fails to show that any of the money or any proceeds thereof ever reached the receiver. Unless the plaintiff can do this by a clear preponderance of the evidence it must fail. The rule adopted here has been followed by the great majority of the courts that have passed upon the question.” Citing in support of this doctrine, Fletcher v. Sharp, et al. (Ind.) 19 N. E. 143; Stephens v. Stephens, (Ky.) 12 S. W. 192; Burnham v. Burnham, (Wis.) 62 N. W. 906; Gianella v. Mansen (Wis.) 63 N. W. 1047; Henry v. Martin, (Wis.) 60 N. W. 263. On the authority of this case, and the authorities therein cited, the decision of the district court is reversed and remanded at the costs of the appellee. Gillette, J., who presided in the court below, not sitting; all the other Justices concurring!