
    WHITE v. WASSON. Rec.
    No. 15578
    Opinion Filed Sept. 15, 1925.
    Rehearing Denied May 18, 1926.
    1. Pleading — Necessity — Issue as to R^al Party in Interest.
    Where the defendant seeks to join issue as to who the real party in interest may he, same must he specifically pleaded; a general denial is not sufficient.
    2. Banks and Banking — Insolvent Banks— Deposit Net Set-Off Against Indebtedness.
    A hank deposit cannot 'lie pleaded as an offset against an indebtedness arising after the dissolution of the hank.
    (Syllabus by'.Tones. C.)
    Commissioners’ Opinion. Division No. 3.
    Error from District Court. Creek County; Fred A. ’Speakman, Judge.
    Action by Clark Wasson, receiver of the First National Bank of Sapulpa, Okla., against A. N. White. Judgment for plaintiff. and defendant brings error.
    Affirmed.
    Thompson & Smith, for plaintiff in eyror.
    Robert B. Keenan, for defendant in error.
   Opinion by

JONES, ’O.

This action was instituted in the district court of Creek county, Okla., by the defendant in error, as plaintiff, against the plaintiff in error, as defendant, in the trial court. The action was brought to recover the sum of $007.50; with interest, rent due plaintiff by defendant for the rental of certain rooms in the First National Bank Building of Salpulp-a, Oklá. The defendant, AVhite, filed his answer, which was a general denial, but further answering, admits the occupancy of the premises described in .plaintiffs petition, and that the rate of rent was correct, “tout says that he is not indebted to the plaintiff ior any amount of rent for the reason that the plaintiff is indebted to him in the sum of $1,971.72, etc.,” and further pleading by way of cross-petition, prays judgment for the difference between $1,971.72 and $007.50, the amount of ,r'ent sued for. In reply to the answer filed by defendant., the plaintiff alleges that on or about the 25th day of ¡June, 1922, the First National Baink of Sapulpa, Olila.. one of the appellees here, was a baulking corporation amd conducted a banking business until about that date, at which rime it failed and suspended business, and the appellee, Wasson, was appointed receiver of said institution tot'’ the Comptroller of Currency of the United States, as duly provided by law, and further replying, says (hat the defendant, AYhite, was a depositor and creditor of said hanking association, and in snbstnlnce alleges that said AYliite had the amount of money set up in his cross-petition, $1,971.72, on deposit, and ihat under the law he will be entitled to receive his pro rata sbaire of all monies received and coming into the hands of the receiver, AAAasson, and that same will be duly distributed as provided by law; that the amount sued for by plaintiff in his original petition representa rent upon a storeroom in the rear of the l>an(k building, and that said rentals have accrued since the date of the suspension of said National Bank, and is the rental for said rooms for the months of July, August. September. October, November, and December, 1923, and that by reason of the fact that the el'niims for rentals have accrued subsequent to the closing of the bank, the defendant is not entitled to plead his deposit as an offset to same, said deposit existing at the time of the suspension of business by the bank.

Thereafter, the plaintiff filed and presented its motion for judgment on the pleadings, which was by the court sustained and judgment rendered in favor of the plaintiff and against the defendant for the amount sued for as rents; from which judgment of the cou,vt the appellant prosecutes this appeal, and contends that the court erred in sustaining the motion for judgment on the pleadings for the reason that the pleadings-clearly present issues of fact triable by a jury, and that the court committed error in-finding that the defendant was not entitled to plead as an offset against the claim for rents his deposit.

The fi|i.Jst contention urged by appellant is that the general denial filed by the defendant is sufficient to1 raise the issue of the existence of the rental contract pleaded by the plaintiff, and also the question of whether or not the plaintiff named was thereat party in interest, but we do not regard (bis contention as -meritorious, in view of the fact that the defendant substantially admits the existence of the indebtedness for rents and the correctness thereof, both in his answer and cross-petition; wherein he-ploads his deposit as an offset to same, and pra.vs judgment for the difference between the amount of his deposit and the 'amount of rents sued for, and prays for judgment against the plaintiff, which is an admission of (lie correctness of the claim for vents and a recognition of the plaintiff as being the real party in interest, and we think this stale of the record renders this contention without merit.

In the case of Overholt v. Deitz, 72 Pac. 095. Hie Supreme Court of Oregon announces the following rule:

“In a suit on a note, denials of its in-dorsements and assignments to plaintiff, and of his -ownership thereof, are proper as casting on him the burden of proving ownership, though they are insufficient to raise an issue as to -his toeing the real party in interest.”

And in the body of the opinion the court said, speaking of the 'pleading in question:

“There was no attempt to set up that plaintiff was not the real party in interest. Under the authorities cited, such a defense should be specially pleaded and facts stated showing -who the real pairty may be. Curtis et al. v. Gooding. 99 Ind. 45; Mathews v. Thomas, 101 Ind. 119.”

The same rule has been followed in the ease of McGregor v. Oregon R. Co., (Ore.) 93 Pac. 465, 14 L. R. A. (N. S.) 668.

The second proposition alleged is tlwt the court was in error in holding that the defendant was not entitled to plead liis deposit a!s an offset to this claim. Section^ 5254 and 5236, Rev. Stats. U. S. provide for the manner of winding up the affairs of defunct banking -institutions, and the first section referred to provides that: ,,

“All payments of money to either (referring to shareholders and creditors) made ■after the commission of an act of insolvew.v, or in contemplation thereof, made with ¡< view to prevent the application of its a.-sets in the manner prescribed by this chapter, •or with the view to the preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void.”

Note. — See under (1) 31 Cyc. p. .219. (2) 7 C. J. p. 747, § 537 (Anno).

This provision of the law we think is controlling- and clearly sustains the judgment of the trial couirt. It would be giving a preference to have .permitted the plea of offset in this case.

Appellant cites the cases of Yardley v. Clothier, 49 Fed. 3.17. and Scott v. Armstrong, 146 U. S. 511, 36 Ij. Ed. 1059, in which it was held that a depositor might plead as an offset his deposit against his note hold by the banking institution at the time or date of insolvency, but in thé case of Scott v. Arm■strong. supra, which seems to be a leading case on this question, we find the following-statement :

“The state of case where the claim sought to be offset is acquired after the act of insolvency is far otherwise, for the rights of the parties become fixed as of that time, and to sustain such a; transfer would defeat the object of these provisions. The transaction must necessarily- be held to have been entered into with the intention to produce its natural' .result, the preventing of the application of the insolvent’s -assets in the manner prescribed. * * * ”

And in the body of the opinion in the case •of Mercer iv. Dyer (Mont.) 39 Pac. 314, the -conyt said:

“The provisions of the acts are not directed against all liens, securities, pledges, or equities whereby one creditor may obtain a greater payment than another, but against those given or Oi'ds’ng after or in -contemplation of insolvency.”

This we think is a correct application of the law. Monies received by a receiver of an insolvent hanking institution derived as rent or revenues from the assets of the bank in the bands of the receiver become the property or assets of the bank and should be distributed pro rata among all of its creditors. To apply it) otherwise, would he clearly giving a preference to one creditor over another, hence the answer and cross-petition •of the appellant, defendant in the trial court, was in fact no defense to plaintiff’s cause •of action, and lienee the judgment of the trial court in sustaining a motion for judgment on the pleadings was correct, -and we, therefore, recommend that the judgment of the trial court be affirmed.

By the Court: It is so ordered.  