69 So. 432 | Ala. | 1915
Lead Opinion
The appeal is taken from the ruling of the chancery court on demurrer to the original bill, praying that the appellees, Joe Meadows and Judge Meadows, be enjoined from prosecuting their suit in detinue pending in the circuit court, and from interfering'with appellant, W. J. Hicks, in the collection of the moneys alleged to be due him by the Bank of Ash-ford on a certain certificate of deposit, which certificate is in the following language:
“(Certificate Not Subject to Check of Deposit.)
“Bank of Ashford. No. 70.
“Ashford, Ala., Feb. 9th, 1912. $600.00
“W. J. Meadows has deposited in this bank six hundred and no/100 dollars in current funds payable to himself, or in case of his death to Joe & Judge Meadows, 12 months after date, with interest to maturity only at the rate of 5 per cent, per annum, on the return of this certificate properly indorsed. No interest after 12 months unless renewed.
“W. W. Cook, Cashier.
“Not over six hundred $600$
“Gold Ctf. Safety Paper.”
The allegations of the bill are that neither Joe Meadows nor Judge Meadows had any interest in the money loaned to the said bank, but that it was the individual property of W. J. Meadows; that during the month of March, 1912, he gave and delivered this certificate of
Joe Meadows and Judge Meadows and the Bank of Ashford were made parties respondent. A writ of injunction was asked, to restrain and enjoin Joe Meadows and Judge Meadows from further prosecuting the suit at law in the circuit court, or from interfering with the collection of the money alleged to be due the appellant, or from taking any action as to the certificate of deposit, or the collection of the money due thereon, and that on final hearing appellant be adjudged entitled to recover the money on said certificate. A preemptory writ of injunction was ordered by the judge of the Twelfth judicial circuit, and the writ so issued was re
We must first declare the legal effect of the certificate made “payable to himself, or in case of his death to Joe and Judge Meadows.” Was there a perfected gift of W. J. Meadows to Joe and. Judge Meadows of the money secured thereby? What was the intention of W. J. Meadows at the time of the taking of the certificate so made payable? Did he intend an irrevocable and absolute gift to them?
To answer the question, we note that in Nutt v. Morse, 142 Mass. 1, 6 N. E. 763, where Calvin Morse made savings deposits as follows “Book 3006, $1,000. Calvin Morse in trust for Reese Morse.” Book 3007, $1,000. Calvin Morse in trust for Edgar S. Hays.”— and made similiar deposits for other brothers and sisters, it was held to be clear that- there was no perfected gift to either of the claimants. The evidence in the case showed that Calvin Morse informed the claimants that he controlled the funds while he lived, but that “it ions theirs after he died.”
In Garrish v. N. B. Sav. Bank, 128 Mass. 159, 35 Am. St. Rep. 365, A. made a deposit in trust for his son by name, and for his grandchildren by name. The rule was declared that it was not enough that the testator
In Macy v. Williams, 55 Hun, 489, 8 N. Y. Supp. 685, the depositor received a passbook containing an account opened to him as trustee for Eleanor Hildick; he left it with the mother of the cestui que trust for a considerable time, but subsequently obtained the book and drew the money and thereafter died. It wag declared that the gift was completed, and that when he drew the money he held it as trustee, and that for it his estate was liable.
On the question of gift vel non, it was decided in Orr v. McGregor, 43 Hun, 528, that where one deposits his money in a bank to the credit of another, without qualification expressed at the time, the deposit is prima facie evidence of the gift. Yet evidence may be received to show the real intention. If the depositor retains the passbook, intending not to deliver the same presently, nor to consummate the gift evidenced by the deposit, but to await some future date or the happening of some contingency, the donation is not accomplished by the deposit.
In Howard v. Savings Bank, 40 Vt. 597, the passbook and knowledge of the deposit were withheld from the person credited with it, and the depositor died without having asserted any right to the money, or having made any effort to recall the gift, and the conclusion was that the title passed to the donee.
In Pope v. Burlington Sav. Bank. 56 Ver. 284, 48 Am. Rep. 781, the deposit was made by the plaintiffs intestate to the credit of C., payable to himself. He re claimed the deposit book, and the money could not be drawn without its production. It was held not a gift,
In Sayre v. Weil, supra, where a deposit was made to “D. Weil, trustee, for the Goldman children,” and the depositor testified, “I put it there as a gift to them, every week, so when they grew up they would have something to fall back upon,” and that he continued these deposits for four years, it was held that an irrevocable trust was created, and nothing remained in the trustee but a mere naked title. — Johnson v. Amberson, 140 Ala. 432, 37 South. 273. If, however, there remained anything to be done to perfect the gift, or if the donor reserved an interest or exercised dominion over the liability of the bank to pay, then the title did not pass, and the nominal donee could obtain no relief in any court. — Walker, Guardian, v. Crews, 73 Ala. 412; Kinnebrew v. Kinnebrew, 35 Ala. 628, 638; Ragsdale v. Norwood, 38 Ala. 25, 79 Am. Dec. 79.
From the allegations of the bill it is apparent that W. J. Meadows did not intend that the taking of the certificate from the bank, “payable to himself, or in case of his death to Joe and Judge Meadows,” should create an irrevocable trust for Joe and Judge Meadows; and that nothing should remain in him but a- naked title. He reserved, on the face of the certificate, not only the use of the fund, but dominion over the liability of the bank to pay, and the allegation of the bill is he disposed of it to appellant. Thus he gave the
But the bill alleges that the certificate of deposit was transferred and delivered to appellant without indorsement or written assignment of W. J. Meadows
Section 5156 of the Code requires: “All assignments or indorsements in writing of contracts which are not governed by the commercial law, whether regular or irregular, must be construed as within the meaning of the last three sections, unless the contrary clearly appears from such assignment or indorsement.”
These statutes are comprehensive enough to include the certificate of deposit in question. — Mobile v. McDonnel, 83 Ala. 595, 4 South. 346; First National Bank v. Nelson, 105 Ala. 180, 16 South. 707; Amer- National Bank v. Henderson, 123 Ala. 612, 26 South. 498, 82 Am. St. Rep. 147; Haas & Co., v. Citizens’ Bank, 144 Ala. 562, 39 South. 129, 1 L. R. A. (N. S.) 242, 113 Am. St. Rep. 61; Bank v. Nelson, supra. It is clear, then, that if a suit at law were brought against the Bank of Ashford by the appellant on the certificate, section 2489 of the Code, which provides that suits at law “must be prosecuted in the name of the party really interested, whether he has the legal title or not,”’ would have application.
The bill filed in the chancery court is not primarily a suit by the appellant against the Bank of Ashford. It is for injunction against Joe and Judge Meadows to prevent the prosecution of the detinue suit brought "by them in the circuit court against appellant for the certificate. Section 2489 of the Code does not apply to detinue, or to suits brought under the statute for the recovery of personal chattels in specie. A mére
From the foregoing authorities, we are of opinion that the first, second, eighth, ninth, and tenth grounds of demurrer are not well taken.
There is no conflict with Brown v. Feagin, 147 Ala. 438, 57 South. 20, holding a bill multifarious that sought partition and also to.quiet claims of third persons. The question was the right to quiet unassociated adverse claims and make partition between tenants in common,, which would have the effect of practically abolishing the action of ejectment whenever there were joint claimants of property in the hostile possession of ánother. In the case at bar the possession of the certificate of deposit and its return to the Bank of Ashford, properly indorsed by the party entitled to the payment thereof,, was a condition precedent to the payment of the money secured thereby by the bank. The bank was thus a necessary party to preserve the fruit of the litigation for its rightful OAvner.
It is unnecessary to notice other grounds of demurrer. In line Avith the authorities above noted and the reasons upon which they proceed, we hold there was
Reversed and remanded.
Rehearing
ON REHEARING.
In response to the application for a rehearing, we call attention to the fact that this is not an action on the certificate of deposit for the payment of the money, such as by section 2489 of the Code it is provided the party really interested may maintain, whether he has the legal title or not. It is an injunction to restrain procedure in detinue for the recovery of the certificate of deposit. Section 2489 has no application to this suit.
Though the certificate was delivered by W. J. Meadow, to appellant, if in his lifetitme Meadows had sought to repossess the certificate by detinue, the equitable title of appellant could not have prevailed against the holder of the legal title. The statute requires indorsement to pass the legal title to the nonnegotiable certificate of deposit. That appellant had the possession of the certificate without indorsement would not authorize evidence showing at law his equitable right to retain it.
The facts of this case do not bring it within the rule that possession alone will entitle the holder to maintain his suit against a mere wrongdoer, not showing any
The application for a rehearing must be overruled.
