Landau v. Landau

• Decision Date: 20 March 1939
• Docket Number: 33577
• Citation: 187 So. 224,185 Miss. 45
• Court: Mississippi Supreme Court
• Parties: LANDAU v. LANDAU

187 So. 224

185 Miss. 45

LANDAU v. LANDAU

No. 33577

Supreme Court of Mississippi, Division A

March 20, 1939

APPEAL from the circuit court of Coahoma county HON. WM. A. ALCORN JR., Judge.

Action by Eyrich Landau against Berthold Landau to recover a sum of money. From a judgment entered on a peremptory instruction for plaintiff, defendant appeals. Affirmed.

Affirmed.

John W Crisler, of Clarksdale, for appellant.

The legal proposition controlling this case as we conceive them are, in our opinion, uncontrovertible. These propositions briefly stated, are that if appellee did not have the legal title he did not have to sue, and if he did have the legal title, the court should have allowed the setoff.

Under the consistent holding of the Supreme Court of Mississippi the legal title must be vested in the plaintiff in order to give him standing in a court of law.

Eckford v. Hogan, 44 Miss. 398; Waters v. Railroad Co., 74 Miss. 534, 21 So. 240; Fire Ins. Co. v. Daniel Auto Co., 121 Miss. 745, 83 So. 807; Cottrell v. Smith, 146 Miss. 837, 112 So. 465.

It seems to us that this record shows undeniably that the legal title to this money was in Alfred Landau. But whether this is true or not it was at least a question for the jury. The evidence in the record would abundantly justify a jury in holding that this was Alfred Landau's money. If the jury should so hold, then necessarily plaintiff would have no cause of action.

47 C. J. 33, sec. 69; 57 C. J. 450, sec. 99; Cottrell v. Smith, 146 Miss. 837, 112 So. 465.

Brewer & Montgomery, of Clarksdale, and Armstrong, McCadden, Allen, Braden & Goodman, of Memphis, Tenn., for appellee.

Defendant has completely abandoned his theory below that the application of the money to the alleged debt due defendant from plaintiff's father was made under express authorization from plaintiff and instead seeks to have this court hold, on a theory not pleaded below, or in no wise presented to the court, that the beneficial interest in the money was vested in Alfred Landau, which authorized defendant to offset against the money the alleged debt owing him by Alfred Landau, plaintiff's father. Clearly defendant will not be heard in this court so to reverse his position or so to attempt to place in error the court below on matters not presented to, or considered by, that court.

Estes v. M. & C. R. R. Co., 152 Miss. 814; Miss. Valley Co. v. Brewer, 157 Miss. 890; Mitchell v. Finley, 161 Miss. 527; Adams v. Supervisors, 177 Miss. 403; Williams v. Lumpkin, 169 Miss. 146; Miss. Power Co. v. May, 173 Miss. 580.

While it is undoubtedly true, as held by the cases cited in defendant's brief, that legal title must be vested in the plaintiff in order to give him standing in a court of law, nothing could be clearer, we submit, than that legal title to money on deposit to a man's credit in a bank is vested in a depositor and that he who receives money in the form of a check from a bank receives it from the holder of the legal title. There is no question here of the assignability of rights. It was plaintiff's money because it was deposited to his credit in the bank. Plaintiff turned the money over to the defendant. That is uncontroverted. The right to sue for the promised return of the money necessarily vested in plaintiff as a legal right. We will not burden the court with citation of authority on such an elementary point.

The trial judge correctly refused to permit defendant to make proof of an alleged indebtedness from Alfred Lanau to defendant, as a defense to plaintiff's claim.

Defendant did not claim that plaintiff was indebted to him in any amount, but that a third person, Alfred Landau, was. The fact that the third person happened to be plaintiff's father is not significant. He was still a third person, and was not a party to the suit. The claim of plaintiff against defendant, and the claim of defendant against Alfred Landau, were not reciprocal; but were entirely lacking in mutuality and this rendered the testimony immaterial.

Secs. 537 and 538, Code of 1930.

Argued orally by John W. Crisler, for appellant, and by Fred Montgomery, for appellee.

OPINION

Griffith, J.

The only witnesses were the parties litigant. The record is in an unsatisfactory condition, but the matters stated in this and the next two paragraphs may be said to be undisputed. The parties are German Jews. Appellant came here nearly forty years ago and resides at Clarksdale, in this State, where he is engaged in the mercantile business. Appellant is the uncle of appellee. The latter arrived in this country in November, 1934, and was twenty years of age at that time. During the summer of 1935, he came to Memphis, Tennessee, where he has since resided. Soon after his arrival in Memphis he opened an account in a bank of that city, wherein he deposited his small personal savings. Sometime thereafter, but before November 30, 1935, he received from his father, then in Germany, a remittance, via Holland, apparently in current bankable exchange in the sum of $ 1436.66, which the son deposited in his said bank account to his personal credit on March 6, 1936. What was done with it between the time of its receipt and the deposit in the particular bank and account aforesaid does not appear.

The father, also, was planning to come to the United States, and to do so he had to satisfy the American consular authorities in Germany that he would not become a public charge, and this could be done by showing that he had available money or property here, or by affidavit of responsible residents of this country pledging support of him on his arrival. The son was willing, without regard to any question of ownership of the money sent by the father, to use it or any necessary part of it, temporarily, in aid of getting his father to this country; but it was the son's understanding--and there is not a word to show that the father understood otherwise--that it would not be available to place the money, or any part thereof, to his father's credit because of the danger that the German authorities, by opening the mails or otherwise, would find out that the father had sent money out of that country, and regardless of the purpose of that remittance, might deny the father the privilege to leave Germany until all the money sent away by him should be returned to that country. This subject was discussed between appellant and appellee after the arrival of the money into the son's hands, and manifestly this was the subject under consideration in the letter from the son to, his uncle, which will be hereinafter mentioned. The father did succeed, late in the summer of 1936, in getting to the United States, on an affidavit of support, but who made the affidavit is not disclosed in the record.

The father while yet in Germany had borrowed from appellant a sum in excess of the $ 1400 here involved, which appellant asserts had not been repaid, but the son was unaware of the existence of this debt, if it existed, and his uncle made no mention of it. On March 10, 1936, appellee, the son, delivered to appellant a check on the aforesaid bank account for $ 1400, the full proceeds of which...