{ "id": 1456618, "name": "Bank of Marion v. Beck", "name_abbreviation": "Bank of Marion v. Beck", "decision_date": "1940-01-15", "docket_number": "4-5679", "first_page": "668", "last_page": "672", "citations": [ { "type": "official", "cite": "199 Ark. 668" }, { "type": "parallel", "cite": "136 S.W.2d 188" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "62 S. W. 2d 27", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "187 Ark. 769", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1432064 ], "opinion_index": 0, "case_paths": [ "/ark/187/0769-01" ] }, { "cite": "48 S. W. 2d 1102", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "185 Ark. 691", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1435059 ], "opinion_index": 0, "case_paths": [ "/ark/185/0691-01" ] }, { "cite": "39 S. W. 2d 724", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "183 Ark. 937", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1441654 ], "opinion_index": 0, "case_paths": [ "/ark/183/0937-01" ] }, { "cite": "122 S. W. 2d 652", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10241595, 8719795 ], "opinion_index": 0, "case_paths": [ "/sw2d/122/0652-01", "/ark/197/0300-01" ] }, { "cite": "197 Ark. 300", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719795 ], "opinion_index": 0, "case_paths": [ "/ark/197/0300-01" ] }, { "cite": "276 S. W. 371", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "169 Ark. 622", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1374062 ], "opinion_index": 0, "case_paths": [ "/ark/169/0622-01" ] }, { "cite": "248 S. W. 573", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "157 Ark. 478", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1357223 ], "opinion_index": 0, "case_paths": [ "/ark/157/0478-01" ] }, { "cite": "20 S. W. 406", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "56 Ark. 499", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1326122 ], "opinion_index": 0, "case_paths": [ "/ark/56/0499-01" ] }, { "cite": "291 S. W. 832", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "172 Ark. 1165", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1407854 ], "opinion_index": 0, "case_paths": [ "/ark/172/1165-01" ] }, { "cite": "201 S. W. 820", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "132 Ark. 592", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1576686 ], "opinion_index": 0, "case_paths": [ "/ark/132/0592-01" ] }, { "cite": "36 Ark. 575", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872393 ], "opinion_index": 0, "case_paths": [ "/ark/36/0575-01" ] }, { "cite": "78 S. W. 746", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "72 Ark. 132", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1505566 ], "opinion_index": 0, "case_paths": [ "/ark/72/0132-01" ] }, { "cite": "241 S. W. 19", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "153 Ark. 599", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1362328 ], "opinion_index": 0, "case_paths": [ "/ark/153/0599-01" ] }, { "cite": "247 S. W. 1077", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "156 Ark. 481", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1358450 ], "opinion_index": 0, "case_paths": [ "/ark/156/0481-01" ] } ], "analysis": { "cardinality": 471, "char_count": 6856, "ocr_confidence": 0.514, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.054649904299439854 }, "sha256": "d60fc97f9546b6f2c01fb3c6cea275dbfad28abc51c1d3908d5e07d0f7d35197", "simhash": "1:a0a60d5d01918991", "word_count": 1215 }, "last_updated": "2023-07-14T16:09:45.659289+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Bank of Marion v. Beck." ], "opinions": [ { "text": "Grieein Smith, C. J.\nThe agreed statement is that O. E. Sharp, appellee\u2019s tenant, owed appellee $1,198.20 for rent and supplies. Proceeds of 60 bales of cotton upon which appellee had a landlord\u2019s lien were, without appellee\u2019s knowledge or consent, applied on Sharp\u2019s note to the Bank of Marion. The bank knew of the lien. Sharp either directed or acquiesced in the transaction. The landlord\u2019s account was due November 1, 1937.\nIn February, 1938, the bank became insolvent. Appellee\u2019s suit was filed April 12. The bank, Sharp, and representatives in charge of the bank, were made defendants. The claim was not presented to the bank before suit was brought.\nJune 27 the bank demurred to the complaint, the contention being that refusal of the commissioner or deputy to allow the claim was a condition precedent to the court\u2019s right to exercise jurisdiction. The demurrer was sustained, but the complaint was not dismissed.\nIn September an amendment to the complaint was filed. It alleged presentation of the claim June 29 and rejection September 2.\nThere was judgment for appellee as a general creditor, with interest at 6 per cent, from November 1, 1937, and cost.\nFirst. When the bank\u2019s cashier bought the cotton for a company operated by the cashier personally and shipped the commodity to Memphis, Tennessee, receiving payment and applying such proceeds on Sharp\u2019s obligation to the bank, the act of conversion was the act of the bank. Appellee\u2019s lien was thereby destroyed. Sledge & Norfleet Co. v. Hughes, 156 Ark. 481, 247 S. W. 1077; Walker v. Rose, 153 Ark. 599, 241 S. W. 19.\nAt page 413, 36 Corpus Juris, \u00a7 1510 (f), chapter on Landlord and Tenant, it is said: \u2018 \u2018 Any person who knowingly, by purchase or otherwise, deprives the landlord of the opportunity of enforcing his lien is guilty of a tort, and the landlord has a right of action for the damages sustained.\u201d\nWhile our own cases contain expressions in accord with the rule stated by the text writer of Corpus Juris, there is language in some of the decisions to the effect that where the lien has been destroyed the remedy is by suit in equity \u201c. . . to fix the lien upon the proceeds of the property where the lien on the property itself has been destroyed by the wrongdoer.\u201d Judge v. Curtis, 72 Ark. 132, 78 S. W. 746; Reavis v. Barnes, 36 Ark. 575.\nIn Security Bank & Trust Co. v. Bond, 132 Ark. 592, 201 S. W. 820, in referring to the plaintiff\u2019s rights, it was said: \u201cHis remedy is by action against the tenant for recovery of the debt and attachment of the property to enforce the lien, or by suit in equity against the third person who has received the property from the tenant to subject it to the lien.\u201d The suit was in circuit court; and, as the opinion says, \u201cimproperly instituted.\u201d It was held that in the absence of objections \u201c. . . the judgment should not be reversed merely because the action was brought in the wrong court.\u201d\nThe question presented in the instant suit is whether an action against the bank can be maintained after the lien period of six months had run.\nAppellants rely upon Bottrell v. Farmers\u2019 Bank & Trust Co., 172 Ark. 1165, 291 S. W. 832, in support of their contention that when appellee\u2019s demand was rejected September 2 the lien had expired and the bank could not be held liable. It is insisted (correctly, we think) that the amendment to the complaint did not relate back to April 12, but that the right to sue arose when the claim was disallowed.\nIn the Bottrell Case Sweeney, the tenant, sold the cotton. The allegation was that the bank received the money, but in the opinion it is said: \u201cSweeney sold the crop, and, without paying the rent . . . paid the proceeds ... to the bank on his indebtedness.\u201d\nThere, as here, the tenant owed the bank on an obligation with which the landlord had no concern. On page 1170 of the Bottrell decision there is this language: \u201cSo far as we know, thib court has uniformly held, not only that the action by the landlord against the tenant to enforce a lien must be begun within six months, but, when the property on which there is a lien is sold by the tenant,' a suit to enforce a lien on the proceeds must be begun within six months.\u201d\nIt is true that in the case at bar the property on which the landlord had a lien was sold by the tenant, but the bank, as a party to the act of destroying appellee\u2019s lien by shipping the cotton to Tennessee, participated in the tort. In Bottrell v. Trust Company the bank received proceeds of the sale, but had nothing to do with the actual sale.\nMr. Justice Battle, speaking for the court in Merchants\u2019 & Planters\u2019 Bank v. Meyer, 56 Ark. 499, 20 S. W. 406, said: \u201cIt is enough to find that the Hammett Grocer Company, having violated or destroyed Meyer\u2019s liens, is liable to him for the damages occasioned thereby. . . . Before recovering this damage, he was not compelled to look to the personal responsibility of Ritchie & Fitzhugh, or to show their insolvency, or to follow the cotton.\u201d\nChief Justice McCulloug\u2019h, in the Sledge & Norfleet Co. v. Hughes, supra, recognized a new cause of action through violation of the landlord\u2019s right when he said: \u201cIf the cotton was transported out of this state by the connivance here of appellant so as to destroy the lien and prevent its enforcement, this establishes liability on account of the violation of the rights of the landlord. \u2019 \u2019\nIn Bank of Gillett v. Botts, 157 Ark. 478, 248 S. W. 573, and in Harnwell v. Arkansas Rice Growers\u2019 Co-Operative Association, 169 Ark. 622, 276 S. W. 371, it was held that liens had not been destroyed, but the facts are different from those in the instant case. See, also, Clemmons v. Byars, 197 Ark. 300, 122 S. W. 2d 652.\nClaims may be filed against an insolvent bank if proof is made within a year from the time the commissioner assumes control, and suit must be begun within six. months from the date of rejection. Pope\u2019s Digest, \u00a7 768.\nThe holding here is that the bank\u2019s tortious act in depriving appellee of his right to enforce the lien within six months gave rise to a new cause of action.\nSecond. The chancellor was correct in holding that the demand could not be classified as'preferential. Taylor v. Dierks Lumber & Coal Co., 183 Ark. 937, 39 S. W. 2d 724. Nor can interest be paid unless assets of the bank are sufficient to pay all demands of depositors. Taylor v. Corning Bank & Trust Co., 185 Ark. 691, 48 S. W. 2d 1102; Home Life Insurance Co. v. Wasson, 187 Ark. 769, 62 S. W. 2d 27.\nThe judgment allowing appellee\u2019s claim as a common creditor is affirmed. The allowance of interest is reversed without prejudice to appellee\u2019s right to claim intei\u2019est if depositors are satisfied in full.", "type": "majority", "author": "Grieein Smith, C. J." } ], "attorneys": [ "John A. Fogleman, for appellant.", "A. B. Shafer, E. C. Gathings and Alvin E. Fink, for appellee." ], "corrections": "", "head_matter": "Bank of Marion v. Beck.\n4-5679\n136 S. W. 2d 188\nOpinion delivered January 15, 1940.\nJohn A. Fogleman, for appellant.\nA. B. Shafer, E. C. Gathings and Alvin E. Fink, for appellee." }, "file_name": "0668-01", "first_page_order": 686, "last_page_order": 690 }