Harris v. Neuman
| Decision Date | 12 December 1934 |
| Docket Number | 10334. |
| Citation | 177 S.E. 698,179 Ga. 879 |
| Parties | HARRIS v. NEUMAN et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where a cashier of a bank is approached for a loan on real estate and negotiates with a third person for the benefit of the person applying, and the cashier afterwards solicits the wife of such applicant to pay to him her personal funds to be applied on the debt of her husband, with the statement that if the moneys are not paid, the woman and her husband will be put out of her home, such funds so contributed by the wife and so applied create an implied trust for the purpose specified. The wife is entitled in equity to a decree impressing the land with an implied trust.
2. The case is not barred by the statute of limitations.
3. A passbook issued by a bank to its depositor belongs to the depositor, and the bank is entitled to its possession only on such occasions as the bank may reasonably require it to be presented to be balanced. A customer of a bank is entitled at all reasonable times, to have full information from the bank as to the status of his account.
Error from Superior Court, Dougherty County; B. C. Gardner, Judge.
Suit by Virginia A. Harris against C. L. Neuman and others. To review a judgment sustaining demurrers to and striking her petition plaintiff brings error.
Reversed.
Jas. W. Smith and R. J. Bacon, both of Albany, for plaintiff in error.
Leonard Farkas & W. H. Burt, of Albany, for defendants in error.
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 as agent to procure the money with which to pay the debts which were in existence before the $1,750 loan was procured from Mrs. Bessie Harris. Neuman received this $1,750 in trust to apply to the old debts of Ed Harris. The allegations are sufficient to justify the conclusion that petitioner's $1,800, solicited from her by Neuman for the purpose of paying Ed's debt, the $1,750 loan from Mrs. Harris, were 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 applied. Mrs. Bessie Harris has not been made a party to the case, and no relief is sought from her. In the brief of the defendants in error the case is treated as though Neuman had been Ed's creditor, and that the money paid by Virginia had been used to pay the debt which Ed owed Neuman. Counsel state that "E. E. Harris, who was insolvent, borrowed $1,750 from said Neuman individually, on his pecan acreage tract and home." They claim that the loan made from Mrs. Bessie Harris does not enter into the case. They deny that there is any trust involved, express or implied; and appear to assume that the action is merely one to recover the moneys paid by petitioner on her husband's debt, and that four years have expired since the payments were made, and that the claim is barred. In our opinion, such is not the case. The essential facts which appear from all the allegations are that there never was but one loan, and that Neuman has never put any money into the land or used any of his own money for Ed Harris' benefit; yet he is in possession of the property and holds a fee-simple deed to it. For that deed he paid nothing. Vested with the record title from Ed Harris, Neuman borrowed, for the benefit of Ed Harris, the $1,750 from Mrs. Bessie Harris; and it was this money, not Neuman's, which was used to pay Ed's debts. It cannot be said that it was Neuman's money and that he lent it to Ed. The land pledged to Mrs. Bessie Harris was that which belonged to Ed Harris, and the money received from Mrs. Bessie Harris was held by Neuman in trust to use for Ed Harris' benefit. So far as the record shows, Ed Harris was not a debtor of Neuman at the time he sought the loan of $1,750. Neuman has never held a note signed by him. Only one loan is involved, the loan from Mrs. Bessie Harris, which was afterwards paid by funds of plaintiff, and canceled. As between him and Mrs. Bessie Harris, Neuman was the borrower, but in equity Ed Harris was the real debtor.
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," etc. We hold that the plaintiff is not entitled to the relief asked in the first part of the quoted sentence but that, if on the trial she prove the allegations she has made, she will be entitled to a decree in equity in line with the relief sought in the latter part of the sentence quoted. Petitioner also asks for a declaration of the trusts "herein asserted," and that "any and all papers, documents, and instruments showing any contrary set-up or relationship may be canceled," etc. If she proves her case as laid, she will be entitled to this relief. We do not regard the case as one brought by reason of the protection afforded to a wife under the Civil Code (1910), § 3007; that is, a suit brought by a wife to recover moneys illegally paid to discharge the debt of her husband. A petition should not be dismissed because of an inconsistent prayer, where it contains prayers for relief appropriate to the allegations of fact; but the better practice is to strike the inconsistent prayer. Pierce v. Middle Georgia, etc., Co., 131 Ga. 99 (2), 61 S.E. 1114. No rights of innocent parties are involved, and the plaintiff should be decreed to be entitled to an equitable lien against the land to the extent that her money was used to liquidate the debt secured by the legal title which Mrs. Bessie Harris held. It is...
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