H. A. WALKER, INTERVENING PETITIONER, APPELLANT,

v.

J. B. MCNEIL AND W. C. ROBERTS, RECEIVERS, ET AL., APPELLEES

Whitfield, J.,

(after stating the facts). — The question to be determined is whether the facts alleged in the petition and admitted' by the demurrer are sufficient for decreeing a trust in favor of the petitioner who deposited a draft to be credited when collected by the bank which failed to open its doors the next day, the draft being collected and the proceeds applied for the benefit of the bank after receivers were appointed.

It is alleged that “only a short time before the close of banking hours” on December 4, 1913, Walker deposited a draft for $1,000.00 payable in Vermont “with the Pensacola State Bank, to be forwarded and collected by said bank, and its proceeds, when collected, to be credited to petitioner;” that the draft was forwarded by the bank to New York for collection; “that sometime during the night of December 4, 1913, it was decided by the said bank to suspend payment, and to close its doors for business, and to turn the assets of the bank over to the custody of the Comptroller of the State of Florida; and in pursuancé of said decision, the Comptroller, on the morning of December 5, 1913, took charge of the said bank and its assets, and the said bank was closed for businessthat on Desember 6, 1913, the receivers were appointed “to administer the said assets; all of which was effected prior to the receipt of the said draft” in New York; that on December 5, 1913, petitioner telegraphed the paying bank in Vermont “.of the insolvency of the Pensacola State Bank, and demanded that it stop payment and refuse to pay the said check or draft when presented;” that the paying bank “notwithstanding the direction and demand of your petitioner, did pay the said draft or check when presented;” that the receivers were duly advised of the stated circumstances and that petitioner “elected to rescind the endorsement of said draft, and intended to reclaim the same, or the proceeds thereof, where and when found;” that the New York bank collected the draft and applied the proceeds to the indebtedness of the Pensacola State Bank to the collecting New York bank, and such proceeds with other funds of the bank paid the indebtedness of the Pensacola bank to the New York bank, thereby enabling the receivers to get from the New York bank the collateral securities belonging to the Pensacola bank which had been pledged with the New York bank; that at the time of the receipts by the Pensacola bank of the draft from the peti - tioner, “it was reasonably apparent to its officers that it was unable to pay its obligations, and that it would soon be oblige'd to suspend its operations;” that petitioner was wholly unaware of the insolvent condition of the Pensacola bank when he deposited the draft for collection.

Under the facts and circumstances alleged and admitted by demurrer a trust should be decreed in favor of the petitioner for the proceeds of the check that was deposited for collection on the eve of the closing of the bank, the pro ceeds having been actually collected after the failure of the hank and applied to the purposes of the hank assets in the hands of the receivers for the benefit of creditors and stockholders of the hank.

The order dismissing the petition is reversed.

Shackleford, C. J., and Taylor, Cockrell and Hokcer, J. J., concur.