179 Ga. 879 | Ga. | 1934
The allegations of the petition as 'amended state a good cause of action. What passed between Ed Harris and Neuman, according to the petition, constituted Neuman an agent to procure the money, with which to pay the debts which were in existence before the $1750 loan was procured from Mrs. Bessie Harris. Neuman received this $1750 in trust to apply to the old debts of Ed Harris. The allegations are sufficient to justify the conclusion that petitioner’s $1800, solicited from her by Neuman for the purpose of paying Ed’s debt, the $1750 loan from Mrs. Harris, was used for that purpose. The loan deed has been canceled. If petitioner’s money was in fact so' used by Neuman, she is entitled in equity to have a lien on the land for the amount paid by her. It is alleged that he “extorted” the payments from her by the statement that if she did not make them she would be turned out of house and home; and that, although she did what Neuman wanted her to do, the home was nevertheless lost to her and Ed. The payments by her extended over a period of years, but the circumstances are not such as create an ordinary account on which all items over four years old are barred. The allegations that Neuman is under obligation to repay to petitioner the funds delivered by her to him to apply on her husband’s debt is a conclusion -of law which is not maintainable. So far as-the allegations show; Neuman'was "not Ed’s creditor. The moneys were-given to -Neuman to 'be paid-on. the'-debt due-Mrs.- Bessie Harris.- -Presumably" they-were" so’up-’
It appears that in equity the plaintiff is the one who should hold the claim against the land, and that Neuman should be as completely out of the situation as Mrs. Bessie Harris is. It is true that in the original petition she prayed for recovery from Neuman for funds “paid by your petitioner to him on the debts of her husband,” but the rest of the sentence is “and that all the funds whatsoever in any wise so paid on plaintiff’s husband’s debts aforesaid may be declared to be an equitable lien on the title to the said lands,”
An action to secure such a decree would not be barred until after seven years from the date the right of action accrued. Wallace v. Mize, 153 Ga. 374, 383 (112 S. E. 724). See also Harrison v. Adcock, 8 Ga. 68; Keaton v. Greenwood, 8 Ga. 97; Scott v. Haddock, 11 Ga. 258; Keaton v. McGwier, 24 Ga. 217 (3); McDowell v. Donalson, 149 Ga. 600 (101 S. E. 578); McFadden v. Dale, 155 Ga. 256 (116 S. E. 596); Ulman v. Magill, 155 Ga. 555, 557 (117 S. E. 657); Smith v. Hancock, 163 Ga. 222 (136 S. E. 52); Citizens & Southern National Bank v. Ellis, 171 Ga. 717 (156 S. E. 603). There is nothing in Smith v. Ardis, 49 Ga. 602,
A pass-book is presumed to be in the possession of the customer, except when it is left with the bank to be balanced. This book is the property of the customer. Furthermore, it has been held that he has the right to inspect the books of the bank on all proper and reasonable occasions, and that for this purpose the officers in charge of the books are agents of both parties. 7 C. J. 639. Section 14 of the banking law of 1919 (Ga. L. 1919, p. 135), by giving the right to the superintendent of banks, on taking possession' of a bank, to notify depositors to bring in their passbooks to be balanced, is a tacit recognition of the fact that’ these pass-books under all normal conditions are in the possession and .under the control of the depositors. A reciprocal duty exists between the bank and a depositor with reference to the account and the pass-book. First National Bank v. Patty (Tex. Civ. App.), 62 S. W. (2d) 626. Also, it was held in England Nat. Bank v. U. S. (C. C. A.), 282 Fed. 121, that it is the duty of a bank, upon