Clisby v. Mastin

• Decision Date: 18 April 1907
• Citation: 150 Ala. 132,43 So. 742
• Parties: CLISBY ET AL. v. MASTIN ET AL.
• Court: Alabama Supreme Court

43 So. 742

150 Ala. 132

CLISBY ET AL. v. MASTIN ET AL.

Supreme Court of Alabama

April 18, 1907

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Action by Emily Clisby and others against P. B. Mastin and others. From a judgment for plaintiffs for less than the relief demanded, they appeal. Reversed and remanded.

J. A Elmore, for appellants.

Rushton & Coleman, for appellees.

DENSON J.

On a bill filed in the city court of Montgomery to have lands in which the complainant and the respondents in the bill were jointly interested under the provisions of a will sold for reinvestment, a decree was rendered ordering the sale of the lands. The lands were sold in accordance with the terms of the decree, and the purchase money was paid to the register. The register made a report of the sale to the court, and it was duly confirmed. The court made an order requiring that the money should be kept in the registry of the court until further order made in respect thereto. No further order was ever made. Instead of holding the money in possession or under his control, the register deposited it in a local bank in his name as register. The bank failed, and the money was lost. The foregoing are the facts presented by this record and the only question presented for determination is whether or not the register and his surety are liable on the bond for interest on the money that was lost.

The surety's contention that it is not liable is rested on the proposition that, no order having been made by the court that the money should be paid to any one, or that it should be invested, no debt or cause of action arose to any one in respect to the money, and therefore that no interest could be collected. It is the settled law of this state that a deposit of the kind made in this case constitutes a general deposit by which the money becomes the property of and a part of the funds of the bank, subject to its use as any other of its property; and by it the relation of creditor and debtor between the depositor and the bank, is created. Alston v State, 92 Ala. 124, 128, 9 So. 732, 13 L. R. A. 659. Not only so, but according to the same authority, as well as the statute, the deposit was made in express violation of the law; and it was also made in express violation of the order of the court. Code 1896,§ 4668. Therefore, having been made in violation of the order of the court and in violation of the statute, the deposit...