On Motion for Rehearing.
We believe in the opinion rendering this case we disposed of all the assignments and discussed those we believe material and really involving the legal questions. The appellee insists, however, that by reason of the fact the statutes of the state of Texas are silent as to any authority of the commissioner to apply an offset as in this case; that the absence of any such provision for authority abridges the right to so exercise it.
Under article 449, R. S. 1925, the state is given a prior lien for the benefit of the depository guaranty fund upon all of the assets and upon all of the liabilities owing or accruing to a bank or trust company.
It seems more convincing that our position is correct, that the commissioner had authority to credit the deposit of Theous in the First State Bank of Eastland to the credit of his note owing to the defunct Security State Bank & Trust Company of Eastland, Tex., which note was in 1¡he possession of the commissioner by reason of the failure of the bank and the lien afforded by law.
It follows that the commissioner, as a holder of the note as stated in the original opinion, and as a lienholder in possession having the same for collection as commissioner for the use and benefit of the guaranty fund, had the right to apply the indebtedness of the guaranty fund to Theous to the note.
Appellee also insists that we erred in overruling and failing to sustain his cross-assignment of error No. 1, wherein he complains of the admission in evidence over objection the purported note of Peter Theous and T. Stamos, in favor of the Security State Bank & Trust Company in the sum of $2,100.
‘ We do not see’ how there could be any error in the admission of the note. The commissioner had pleaded the note, and evidence had shown that he had applied the deposit to the note, and it was incumbent upon the commissioner to show the debt in order to justify the act of applying the deposit to the payment of same.
To say that the commissioner holding an indebtedness for the guaranty fund oí an insolvent creditor of a defunct bank would not have the legal right to make collection of a debt as in the case at bar would to our mind be an outrage of the law and an insult to that justness and fairness which usually has the sanction of the law.
The motion for rehearing will therefore be overruled.