Citizens State Bank v. Iverson

Bruce, J. This action is in tbe form of tbe statutory action to determine adverse claims, the plaintiff alleging that it has an equitable “estate and interest in the land in question.” It is really an action to follow trust money which it is claimed was embezzled, into real estate, and to quiet tbe possession of that real estate in the plaintiff, and to recover for tbe use of that land during tbe time it was detained. It involves 560 acres of land in Pierce county, North Dakota. Tbe trial court found for the defendant and a judgment was entered quieting the title in her. From that judgment this appeal is taken and a trial de novo is-asked. In 1908, the land was owned by one Andrew Mygland, and on tbe 17th day of October, 1908, Andrew Mygland conveyed the same by warranty deed to tbe defendant, Mrs. F. M. Iverson, in consideration of the sum of $11,000, less certain mortgages which the purchaser assumed. At tbe time of tbis conveyance, one A. M. Iverson, tbe husband of the defendant, F. M. Iverson, was tbe vice president and managing officer of — 505 — the Citizens State Bank of Rugby. He was practically in complete control. He and his wife, the defendant, F. M. Iverson, and her father, J. H. Lockwood, and three other persons, were stockholders. The board of directors seems to have taken but little interest in the concern, and A. M. Iverson, the vice president, controlled the bank largely to suit ‘himself. The capital stock of the bank was $10,000. The defendant, F. M. Iverson, carried a personal account in the bank. Her husband, A. M. Iverson, also had an account. There was also another account in the bank in which the defendant, Mrs. F. M. Iverson, had an interest. This account was known as the “elevator sales account.” In it Mrs. Iverson had a joint one-half interest with her father, J. H. Lockwood, the funds in the account being the amount realized from the sale of elevator property in Rugby. The contention of the plaintiff is that A. M. Iverson, the vice president of the Citizens State Bank, embezzled the money of the bank, delivered it to Andrew Mygland, and received therefor a deed to the 560 acres running to his wife, F. M. Iverson. There is no pretense or claim, however, that Mrs. Iverson had any knowledge of the embezzlement. The theory of the defense is that Mr. A. M. Iverson was his wife’s general agent, and was vested with general authority to make such investments as he deemed advisable out of the elevator sales account, and to draw upon the account and to disburse it for this purpose, and that he had invested her money, which he drew from the elevator account for that purpose, in the land in question. A counter theory of the plaintiff, however, is that before such attempted withdrawal, if any there was, the fund had been exhausted. The elevator account covered a period of nearly four years, beginning with August 20th, 1907, and ending with September 30, 1911, at which later time it was balanced and completely exhausted. According to the books of the bank, the balance on hand on October 8th, 1908, the time of the alleged purchase, was $6,361.83. The alleged purchase was made on October 8th, 1908. Five hundred dollars of the purchase price of the land in question was paid on October 8th, and the balance of $5,989. 95 on October 17th, 1908. On October 17th, the balance was $6,417.33, and on October 19th, a deposit in the interim of $55.75 having been made, the balance was $6,473.08. After the date of the alleged purchase, four checks appear to have been drawn: one to W. D. McOlintoek — 506 — on December 22, 1908, for $4,290; one on June 23, 1909, to A. M. Iverson, for $2,000; one on December 5, 1910, to the Citizens State Bank, for $600; and one on September 30, 1911, to J. H. Lockwood, for $44.15. The books do not show any withdrawal from the elevator sales account from the 22d day of September, 1908, to the 23d day of •June, 1909, except the withdrawal on December 22, 1908, of $4,290, • in the form of a check to W. D. McClintock. Mrs. Iverson testifies that “Mr. Iverson had charge of my business, and he also had charge of the elevator sales account, and if he wished to take money from the elevator sales account and put in his account, and then take money out of his account, it was satisfactory to me.” Every dollar of the purchase price of the land was paid on October 17, 1908, except the $500 which was paid on October 8th. The payments were made by A. M. Iverson’s personal check for $500, A. M. Iverson’s personal check for $2,819.95, and by $2,970 in cash, which was taken from the cash drawer of the bank by the said Iverson, and for which a cash slip or memorandum seems to have been left. An examination of Mr. A. M. Iverson’s account shows, that on September 22d a check of $2,500 on the elevator sales account was deposited to his credit, and though it shows that on October 9th a check of $500-was paid on the Mygland tract, his account was, after the payment of that check, overdrawn to the extent of $981.09, and after he had paid, on October 17th, the other check on the land for $2,819.95, and taken credit on his own account for a $2,500 note which he took on the trade, his overdraft was $1,314.64. However, a little closer examination of the evidence also tends to show that on October 8th there was actually in the bank to the credit of the elevator sales account, one half of which belonged to the wife, the sum of $13,474.98, and on October 17th when the trade was consummated, sum of $13,530.48. It shows that on July 12,1908, there was a credit of $12,862.38, one half of'which, namely, $6,431.19, belonged to Mrs. Iverson; that on July 13, 1908, the husband, A. M. Iverson, apparently embezzled $4,500 from the cash drawer, and to cover up the shortage Mr. Cassidy, the cashier, presumably at the direction of Mr. Iverson, made out a check for $4,500 on the elevator sales account, making it appear on the books of the bank that such money had been paid to the husband; that on September 18th, there was another deposit of $113.15, and on September 22d another memorandum check fraud — 507 — ulently made out for $2,500 and credited to the account of Mr. Iverson. The result of these entries was to make it appear that the owners of the elevator sales account had withdrawn and paid to Mr. Iverson •cheeks to the amount of $7,000; one for $4,500 on July 17th, one for $2,500 on September 22d; and that on September 22d there was left only $5,975.33 due from the bank to the owners of the elevator sales accounts, when such was not the case, the withdrawal having been made by an officer of the bank fraudulently and for his own use. It is argued by the defendant from all of this, and we believe correctly, that these were merely false entries on the books made to conceal Mr. Iverson’s misappropriations of the bank’s funds which were in his custody and control as the managing officer of that bank; that there was no misappropriation of Mrs. Iverson’s money; that the money that was misappropriated was the bank’s money; that all that Mrs. Iverson had was an open account in the bank which represented an amount due to her from the bank, which was payable on demand, and that if at the time of the payment on the trade with Mygland she had in the bank a credit sufficient to cover the amount of the purchase, and if she really authorized her husband, as her agent, to make the trade and spend her money, and to draw on her account therefor, it could not be said that in payment of the jrarchase price of the land in question the bank’s funds were embezzled; as the prior embezzlements, or rather the manipulations •of the books, had been made to cover up embezzlements of the bank’s funds, and not of the elevator sales accounts, and being unauthorized by Mrs. Iverson, and being made by an officer of the bank and conjointly with his alter ego, who was her agent, and in fraud of her, and the obligation of the bank to her being that of a debtor, and not of a custodian or bailee, she was not bound thereby. Not only is Mrs. Iverson’s testimony clear and undisputed that she had no knowledge of these fraudulent transactions, but this fact is •conceded by the appellant. Her testimony also is positive that she had-given her husband permission to invest her money as he saw fit, and that she authorized the purchase of the Mygland land for $7,000. The same is true of her father, J. H. Lockwood, who appears to have had only a half interest in the elevator sales account. He testifies that he told Iverson that “if there, were any good deals in land he might use the money for that purpose.” He testified that he was entirely ignorant of — 508 — the fraudulent entries made by Iverson; that “he heard, when talking about the purchase of the Mygland tract, that his daughter was to have had the land;” that, though president of the bank, he took absolutely no part in its management. Under the facts of the case, and under the concession that both Mrs. Iverson and her father were absolutely' ignorant of the fraudulent manipulation, and in view of the further fact that the cashier of the bank, Mr. Cassidy, took a greater or lesser hand in the fraudulent manipulations and must have known that some of them at least were irregular, we can see no reason in law or in equity why the defendant wife is not in the position of any other depositor in the bank, and why the fraud of her husband should be imputed to her. We held in the case of Emerado Farmers’ Elevator Co. v. Farmers’ Bank, 20 N. D. 270, 29 L.R.A.(N.S.) 567, 127 N. W. 522, that “in case the treasurer of an elevator company, also acting as cashier of a bank in which the elevator company has money on deposit, and authorized to draw checks in the name of the elevator company upon its bank account for the purpose of paying debts and obligations of the elevator company, misappropriates funds of the bank, and for the purpose of covering up a shortage in the bank’s funds until such time as he expects to be able to replace the same, draws checks of the elevator company payable to the bank and charges these checks against the elevator company on the books of the bank, without intention to transfer funds from one corporation to the other, but only for the purpose of temporarily concealing his defalcation,, such checks create no liability in favor of the bank against the elevator-company.” We further held that “in case the cashier of the bank, having misappropriated funds of the bank or become in some manner indebted thereto as treasurer of the elevator company, draws checks upon it payable to the bank and uses the sum to pay his personal indebtedness to the-bank, such checks, by their form, of themselves, operate as notice to the-bank of the misappropriation of the funds of the elevator company, and the bank after accepting them with such notice cannot predicate upon-them a claim of liability against the elevator company.” We further held that “a banking institution is not authorized to pay out funds intrusted to it on deposit to a person known by it to stand in a trust relation to the depositor, when it has notice that such person intends to misappropriate and divert the fund received to his own uses when paid over, — 509 — and in case such payment is made the amount so paid may be recovered at the suit of the depositor.” We further held in regard to notice that “in case the cashier of a banking institution who has the entire management, control, and conduct of its affiairs and stands as sole representative of the bank in all transactions relating to the receipt and disbursement of the funds of depositors, who, while so acting, draws cheeks of an elevator company of which he is treasurer payable to the bank, presents such checks as treasurer to himself as cashier, takes the sum of money paid over thereon, and misappropriates it, the bank for which he is acting will be held to knowledge of his fraudulent purpose at the time of presenting the checks, and cannot base thereon a claim of liability in its favor against the elevator company.” This ease seems to be conclusive of the one at bar. See also Atlantic Cotton Mills v. Indian Orchard Mills, 147 Mass. 268, 9 Am. St. Rep. 698, 17 N. E. 496. There was therefore no embezzlement of Mrs. Iverson’s money, but of that of the bank itself, and such being the case, and A. M. Iverson, as her agent, being authorized to make the purchase and to charge her account with the amount thereof, and there being at the time sufficient money in the elevator sales account to meet such charge, there is no reason why a defendant should now be dispossessed or be made to yield up the land. The theory of counsel for appellant is based largely upon the fact that A. M. Iverson, the vice president of the bank, was his wife’s agent; that Mrs. Iverson had no actual knowledge of the state of her account, and that there is no proof that the $4,500 and $2,500 withdrawals were not used for her, and that by refusing to allow her husband to testify she precluded the plaintiff from showing what had actually been done with her money. Whether the husband could have been required to testify or not we do not decide, and refer merely to § 740(758), vol. 4, Jones on Evidence. If he could not, the objection of the wife would not raise any presumption against her. See § 739 (757), vol. 4, Jones on Evidence. No assignment of error, however, is based upon the court’s ruling in this respect, and the matter is not mentioned in the brief. The case therefore stands in this position: Plaintiff brings an action to set aside a deed which is otherwise regular, and to declare a trust. The record shows conclusively that at least a part of defendant’s deposit went into that land. It shows that her deposit covered the — 510 — entire purchase price, unless two prior withdrawals from her account were withdrawn by her authority. These are shown to have been credited to her husband’s account, and if they were not paid upon the land, no other disposition is shown. Can it be said that there is proof in the record sufficient to set the deed aside or on which to base the trust ? It is true that much has been said of the defendant’s statement on cross-examination that “Mr. Iverson had charge of my business and he had charge also of the elevator sales account, and if he wished to take money from 'the elevator sales account and put it in his account and then take money out of his account, it was satisfactory to me.” This statement, however, was made in connection with purchases or expenditures made by Mr. Iverson for the benefit of his wife, and not for his own personal use. The question was asked and answered in connection with taxes which were paid by Mr. Iverson’s personal check, and the whole testimony is as follows: Q. I will show you “exhibit J,” the tax receipt, and ask you in what manner it was paid. A. In what manner the taxes 'were paid, you mean ? ■ Q. Yes, that is, did you pay them personally ? A. Mr. Iverson tended to all my business. Q. And have you any check or voucher for the payment of those taxes ? A. I think not I think. Q. That is, I want to ascertain whether the payment was made and charged to your account, or whether it was made and charged to the account of A. M. Iverson. A. I do not know whether it was charged to his account or to mine. Mr. Iverson had charge of my business and he had charge also of the elevator sales account, and if he wished to take money from the elevator sales account and put it in his account and then take money out of his account, it was satisfactory to me. This statement in nowise shows any authority to A. M. Iverson to credit money to his account and to pay it out for any other purpose but on investments made and expenses incurred for Kis wife in such investments alone. 2 C. J. 644. — 511 — The mistake of counsel for appellant consists in an erroneous application to the case at bar of a well established principle of agency. He cites and relies upon Mechem on Agency, 2d ed., where the author in § 1839, vol. 2, says: “Where such an agent attempts dealings between his two principals (both not having consented thereto) either may, in accordance with well settled rules, repudiate the dealings. If, however, either one, instead of repudiating, elects to affirm the transaction and seeks to acquire or retain a benefit from it after knowledge of the facts, he must take the benefit subject to the means by which it was acquired. This is frequently exemplified in the cases already cited in which such an agent for his own purposes abstracts from one principal and attempts to convey to the other, — neither one being represented by any other agent; if the latter principal claims the benefit of the act, he must take it subject to his agent’s knowledge. If A, being the agent of X and also of Y, and being indebted to Y, abstracts bonds from X and receives them for Y as security for that debt, then, though when he attempts to transfer them he may be acting as agent for X, yet when he attempts to receive them and acquire title to them he is acting as agent for Y, Y did not act in person; no one else than A acted for him; if Y had obtained any title he obtained it through A, and he must be charged with the knowledge his agent had at the time.” The trouble with the case at bar is that the transactions are not the same and are in nowise necessarily related. The husband had a general authority to draw checks on the elevator sales account for the purpose of investment. This the bank must be presumed to have known as he was its managing officer. He had no authority to commit a fraud upon the bank, or upon his wife and Lockwood, the owners of the elevator sales account, and to make charges against said account in order to cover up his embezzlements or overdrafts. The payments made by him on the land, therefore, from the elevator sales account, were payments which were made under authority and from a fund which could not be said to have been depleted by reason of cheeks which were wrongfully drawn on such account, and without authority from his wife, either express or implied, but in violation of his trust as an officer of the bank. The section from Mechem on Agency in no way applies, for the wife has in no manner ratified the unlawful acts. What she has ratified has merely been the — 512 — use of her money in the purchase of the land, and the ratification of the use of her money in the purchase of the land and the charging to her account of the checks drawn therefor in noway ratifies separate and distinct transactions which would involve the charging against such account of other amounts which were not chargeable against the same, and which was done by’ her husband, not as her agent, but in fraud of her and in fraud of the bank. The relationship between a bank and a depositor is that of debtor and creditor merely. The bank was not the custodian of the funds of, but owed the defendant wife the sum of her deposit. Against this amount she expressly or impliedly authorized, or at any rate ratified, the expenditure of the money necessary to purchase the land. The money was paid and she ratified, and had the right to ratify, the transaction. In doing this she authorized the setting off against her credit of the amount which was paid on the purchase price of the land. She authorized and ratified nothing more. The fraudulent entries transferring certain funds from the elevator sales account to the account of A. At. Iverson did not constitute an embezzlement of Airs. Iverson’s money, but of that of the bank itself. The bank owed the defendant on that account the same amount of money after, as before, the fraudulent entries were made. Such being the case, and A. AL Iverson, as the defendant’s agent, being authorized to make the purchase and to charge her account with the amount thereof, and there being at the time in the bank, and actually belonging to the elevator sales account, sufficient money to meet that charge, there is no equitable ground upon which defendant may now be dispossessed or made to yield up the land, on the theory that she has paid no consideration therefor. The bank’s funds used in the purchase of the land have simply served to liquidate so much of an indebtedness owing by the bank to the defendant. The judgment of the District Court is affirmed. ’Christianson, J., being disqualified, did not participate. TIon. Charles At. Cooley, Judge of the First Judicial District, sat in his stead.