Slack v. Northwestern National Bank of Superior

WiNslow, J. We regard the'findings of fact as amply supported by tbe evidence, and shall therefore simply discuss tbe legal questions arising upon the facts found. Tbe court has had occasion in several recent cases to discuss the' question of the rights of creditors to proceed by ordinary processes of law against an insolvent corporation to collect-their demands, and it may now be said to be well settled-that such right exists as fully as though the debtor were am [63] individual, instead of a corporation. Ballin, v. Merchants Exch. Bank, 89 Wis. 278; Ford v. Hill, 92 Wis. 188; Hinz v. Van Dusen, 95 Wis. 503. Thus far, at least, the so-called “ trust-fund doctrine ” has been distinctly repudiated in this state; but the question whether the creditor could obtain payment of his debt from an insolvent corporation by voluntary transfer to him of property of the corporation without fraud has not been definitely decided. It is true it was said by the late Mr. Justice Newman, in Gilman v. Gross, 97 Wis. 224, “ It certainly is not going much further to hold that, so long as the corporation is a going concern, it may in good faith use the corporate property to pay or secure its. bona, fide debts; ” but the question did notarise in that case, and hence the remark cannot be considered as authoritative. Certainly, however, it would seem strange if a creditor could not obtain by fair voluntary agreement and transfer that, which he could obtain by an adversary proceeding at law. No good reason occurs to us now upon which such an arbitrary distinction can logically rest, and we think the distinction is also in opposition to the clear weight of the later authorities upon the subject. It was said by the supreme court of the United States, in Fogg v. Blair, 133 U. S. 534, “ That doctrine. [the trust-fund doctrine] only means that, the property must first be-appropriated to the payment of the debts of the company, before any portion of it-can be distributed to the stockholders. It does not mean that the property is so affected by the indebtedness of the company that it cannot be sold, transferred, or mortgaged to bona fide purchasers for a valuable consideration, except subject to the liability of being appropriated to pay that indebtedness. Such a doctrine has no existence.” And in Hollins v. Brierfield C. & I. Co. 150 U. S. 311, it was further said: “ A party may deal with a corporation in respect to-its property in the same manner as [64] with an individual owner, and with no greater danger of being held to have received into his possession property burdened with a trust or lien. The officers of a corporation act in a fiduciary capacity in respect to its property in their hands, and may be called to account for fraud, or sometimes even mere mismanagement, in respect thereto; but, as between itself and its creditors, the corporation is simply a debtor, and does not hold its property in trust or subject to a lien in their favor in any other sense than does an individual debtor.” To the same effect are Hospes v. N. W. Mfg. & C. Co. 48 Minn. 174; White, P. & P. Mfg. Co. v. Henry B. Pettes I. Co. 30 Fed. Rep. 864; 2 Morawetz, Priv. Corp. § 786; Pondville Co. v. Clark, 25 Conn. 97. We fully agree with the principles thus laid down, and were the relations of the two banks in the present case simply those of debtor and creditor we should have no difficulty in holding that the transfer of collaterals made on the evening of February 12th was a valid transfer; there being no actual fraud found. But in this case another fact presents itself, which must be considered in view of a well-settled legal principle now to be stated. It has been held by this court in a number of cases that when a corporation is insolvent and has ceased to be a going concern, and its officers -know, or ought to know, that suspension is impending, then such officers are •so far trustees that they may not transfer corporate property to themselves in payment of debts due them, and that such a transfer constitutes a fraud in law. Hinz v. Van Dusen, 95 Wis. 503. In the present case it appears that there was no president of the savings bank, and that the directors were merely such in name, and that the savings bank was a mere offshoot of the defendant bank; and, while having nominally a separate corporate existence, its affairs were exclusively managed by the officers of the defendant [65] bank. The cashier of the savings bank was in fact but a subordinate of the defendant bank, and simply did the bidding of its officers. The defendant bank therefore was in the same position in fact as the legally elected directors- of the savings bank would have been had they performed their duties. To say that legally elected officers cannot prefer themselves, but that persons who are in fact acting as officers and managing the business can prefer themselves, would seem an anomaly in the law. Such a holding sacrifices substance- to form, and would open an easy way by which the assets of an insolvent corporation could be divided up among persons who were officers de facto, but not de jure. The law is guilty of no such absurdity. In this case' the defendant, through its officers, was in fact managing the affairs of the savings bank. It could no more prefer itself out of the assets of the savings bank when it was insolvent and-was on the verge of suspension, than could legally elected directors, and for the same reasons. This seems to us good sense and good law, and it does not infringe upon the doctrine that a mere creditor of an insolvent corporation may by voluntary transfer, in good faith, receive and hold property of the corporation in payment of his debt ór as collateral thereto. This conclusion renders necessary an affirmance of the judgment so far as the collaterals and the $800 in money are concerned, which were transferred to the defendant on the evening of February 12, 1891. Ye can see no reason, however, for holding that the remainder of the deposits, amounting to $3,941.29, should be-recovered by the receiver. These deposits had been made apparently in the regular course of business at previous times, and simply constituted an indebtedness which the defendant bank owed to the savings bank, and which it had the right to offset against a part of the much larger indebtedness owing to it by the savings bank. Johnston v. Humphrey, 91 Wis. 16. The [66] fact that a check was given by Landswick on the evening-of February 12tñ would not destroy this right. By the Court.— That part of the judgment providing for a recovery of $3,941.29 and interest is revérsed, and in all other respects the judgment is affirmed. No costs are allowed either party, but the respondent will pay the fees of the clerk of this court. BaedeeN, J., took no part.