OPINION Plaintiff has filed a lengthy petition for a rehearing.
The respondents in their original brief filed in this case state: "It is our position briefly that it was the statutory duty of the state bank examiner to take over all of the property and business, including trust funds, if any, of the bank under the conditions which existed on February 16, 1932, and that, if any trust funds thereby came into the possession of the state bank examiner, the same should be disbursed among the respective cestue que trustent upon the presentation and establishment of proper claims therefor; that all such funds, *Page 51 after having passed into the possession of the state bank examiner, are in the custody of the law and that the state bank examiner (now superintendent of banks) is the officer charged with all the responsibilities of a trustee for the benefit of the cestue que trustent; that the corporate organization of the defunct bank is not authorized to interfere with the bank examiner's possession and is precluded by law from so doing, and that no court has jurisdiction to appoint another person as trustee to interfere with the possession or duties of the state bank examiner in that behalf * * *."
Plaintiff, in the closing brief, said: "We are in accord on the proposition that the superintendent of banks had the legal right to take what he found after closing the doors of the bank to the public, but such taking does not pass title to trust funds to him."
This was the identical point upon which we based our opinion.
The plaintiff is a creature of the banking act, from which we quoted in our former opinion. It is subject to all the provisions of that act. We quoted section 53 of it (Comp. Laws, sec. 702), at length. That section provides that if the bank examiner shall have reasons to conclude that a bank is in an unsafe or unsound condition he shall forthwith take possession of the property and business thereof and retain such possession until such bank shall resume business or its affairs be finally liquidated, as provided.
1. The complaint alleges that on February 16, 1932, the defendant Seaborn, in his capacity as state bank examiner, took charge of said bank pursuant to the banking laws of the state, and that thereafter, as superintendent of banks, he took charge of said bank and its assets and affairs, pursuant to the banking act of 1933, and has continued in charge thereof.
The demurrer admitted these allegations, hence we were and are of the opinion that the superintendent of banks lawfully came into possession of the trust fund in question. *Page 52 2. Upon what theory can it be said that a bank which is in the business of acting as a trustee, and as such comes into possession of funds, should, in the face of our statute, be permitted to administer the same when it (bank) becomes unsafe or unsound? We think it was clearly the legislative intent that when such a trustee became unsafe or unsound, the superintendent of banks should step in and protect the cestui que trust.
As we pointed out in the former opinion, the superintendent of banks, in such a situation, assumes all of the responsibilities of the trust.
The petition is denied.