Hicks v. Meadows

• Decision Date: 11 February 1915
• Docket Number: 551
• Citation: Hicks v. Meadows, 193 Ala. 246, 69 So. 432 (Ala. 1915)
• Parties: HICKS v. MEADOWS et al.
• Court: Alabama Supreme Court

69 So. 432

193 Ala. 246

HICKS v. MEADOWS et al.

No. 551

Supreme Court of Alabama

February 11, 1915

On Rehearing, June 30, 1915

Appeal from Chancery Court, Houston County; W.R. Chapman Chancellor.

Bill by W.J. Hicks against Joe Meadows and another. From a decree sustaining a demurrer to the bill, complainant appeals. Reversed and remanded.

Sayre Somerville, and Gardner, JJ., dissenting.

E.S Thigpen and F.M. Gaines, both of Dothan, for appellant.

Espy & Farmer and E.H. Hill, all of Dothan, for appellees.

THOMAS J.

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 Ashford 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 deposit of the Bank of Ashford to appellant, who is now in the possession of the certificate, and has been in such possession since it was given him; and that demand for payment, on the date of its maturity, was made by him on the bank, and the bank refused to pay. It is further alleged that, after the death of W.J. Meadows, Joe Meadows and Judge Meadows instituted a suit in the circuit court against appellant to recover the certificate of deposit, and, unless they were enjoined, would at law recover said certificate and collect the money thereon from the bank. The bill further alleges that at the time the certificate was given and delivered to plaintiff by W.J. Meadows "no legal transfer of said certificate was made, and that he has no adequate remedy at law for the proper defense to the said action (of detinue) brought by said Joe Meadows and Judge Meadows," and that, unless they are enjoined from further prosecuting said suit, it will result in great damage to the appellant. The bill further alleges that he is entitled to have the status of the loan to the bank, and the possession of the certificate of deposit, adjudicated in the chancery court.

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 peremptory writ of injunction was ordered by the judge of the Twelfth judicial circuit, and the writ so issued was returnable to the chancery court of Houston county, Ala.

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?

It has long been the law of the state that a gift of personal property, without delivery, is ineffectual to pass title to the donee. Huddleston v. Huey, 73 Ala. 215. If anything remains to be done, to perfect the gift--if there be a reservation of the use or enjoyment of the thing--it is not a valid executed gift. An executed gift is irrevocable. Walker v. Crews, 73 Ala. 412, 417; Sayre v. Weil, 94 Ala. 466, 470, 10 So. 546, 15 L.R.A. 544; Minor v. Rogers, Ex'r, 40 Conn. 512, 16 Am.Rep. 69.

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 similar 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 was 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 manifested an intention to create the trust and to make the gift at some future time, but that the act of transfer must be fully and completely executed.

In Macy v. Williams, 55 Hun, 489, 8 N.Y.Supp. 658, 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 was 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 Vt. 284, 48 Am.Rep. 781, the deposit was made by the plaintiff's intestate to the credit of C., payable to himself. He reclaimed the deposit book, and the money could not be drawn without its production. It was held not a gift, for the reason that the depositor did not part with the dominion over the liability of the bank to pay, and could not be treated as a trust in behalf of C. The question is generally one of intent, which is not necessarily governed by the form of the deposit. Robinson v. Ring, 72 Me. 140, 39 Am.Rep. 308; Northrop v. Hale, 72 Me. 275. If a gift is completed, it cannot be revoked. Minor v. Rogers, Ex'r, supra.

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 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. 342, 37 So. 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, 418; 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 highest interpretation of his intent, at the time he loaned the money and accepted the certificate, that it should not be an executed gift to Joe and Judge Meadows during his life, but that he should own and control the certificate and the money secured thereby as long as he lived. The provision therein, "or in case of his death, to Joe and Judge Meadows," was but testamentary in character, or a mere promise, of the date of the certificate, to give the same in event of his death before maturity, if not otherwise disposed of.

Under the allegations of the bill, did the appellant acquire the legal title to the certificate by delivery without indorsement from W.J. Meadows, or was it only an equitable title? A certificate of deposit, not payable to order or bearer, is a nonnegotiable promissory note. Code 1907, § 4958; Taylor v. Hutchinson, 145 Ala. 202, 40 So 108; Renfro Bros. v. Bank, 83 Ala. 425, 3 So. 776. Section 2489 of the Code provides that all suits upon promissory notes,...