Perdue v. State Nat. Bank

• Decision Date: 02 February 1950
• Docket Number: 6 Div. 891
• Citation: Perdue v. State Nat. Bank, 47 So.2d 261, 254 Ala. 80 (Ala. 1950)
• Parties: PERDUE v. STATE NAT. BANK.
• Court: Alabama Supreme Court

Page 261

47 So.2d 261

254 Ala. 80

PERDUE v. STATE NAT. BANK.

6 Div. 891.

Supreme Court of Alabama.

Feb. 2, 1950.

Rehearing Granted June 30, 1950.

Finis E. St. John, of Cullman, for appellant.

Julian Harris and Norman W. Harris, of Decatur, for appellee.

The bill alleges, in substance, that in January 1941, there was opened and established with complainant bank a savings account entered on the books of said bank under the style of 'L.H. or Ellen Perdue', and there is now due on said account, including principal and interest, the sum of $13,806.49; that at the time said account was opened complainant issued a pass book in which deposits and interest accruals were entered, said book showing that said amounts had been deposited in said bank by 'L.H. Perdue or Ellen Perdue', and which said pass book contained and had printed thereon certain provisions (set out in the opinion of the Court). It is alleged that C.D. Perdue advised complainant of his appointment as guardian of L.H. Perdue, a non compos mentis, and requested payment to him as such guardian of the amount of said deposit; that complainant declined such request until it could investigate the matter that complainant thereupon notified respondent Ellen Perdue of such requested payment, suggesting her consent to such payment; that Ellen Perdue instead of giving such consent, herself presented the pass book and demanded that the deposit be paid to her. Alleging that it is not advised as to whether the money belongs to the one or the other of said claimants, prays that it be permitted to pay the money into the registry of the Court and the claimants be required to litigate the matter between themselves.

BROWN, Justice.

The transaction between Perdue and wife and complainant bank boiled down to last analysis was simply a loan of money by the former to the latter on express contract on the part of the complainant to pay to either one or both with interest on presentation of the pass book showing the true state of the account with accrued interest on demand. As the contract states, 'The bank considers the possession of the pass book as the important condition, and reserves the right, if it so desires to pay on it alone.' As to the legal effect of the transaction see Clark v. Young, 246 Ala. 529 Par. , 21 So.2d 331, and authorities there cited.

The contract printed on the pass book provides: 'Deposits may be made jointly by husband and wife, either one or both. The signature of either one to be sufficient for withdrawal of all or any part of funds standing to the credit of both.' Under the terms of the contract, when the wife Ellen Perdue appeared in person and presented the pass book showing the true state of the account and requested the bank to pay the full amount to her and the bank refused to do so, it breached said contract and the duty growing out of said contract,--a tort. Pratt v. First National Bank of Fayette, 243 Ala. 257, 261, 9 So.2d 744; H. C. Schrader Co. v. A. Z. Bailey Grocery Co., 15 Ala.App. 647, 74 So. 749. In the face of such demand and the express provisions of the contract, it had no right to doubt or to inquire into the ownership of the debt created by the loan. That inquiry was foreclosed by its brain-child,--the contract endorsed on and a part of the pass book. The money in the hands of the bank was not the property of the depositors but the property of the bank which it was under duty to use in discharge of its obligation on demand of Mrs. Perdue, who had the pass book in her possession and made demand on the bank to pay.

The facts of this case bring it clearly within the influence of § 128(3), Title 5, Code of 1940, Cum.Supp.1947, regulating procedure in case of adverse claim. The legislative purpose clearly expressed is to put on such adverse claimant the burden of bringing on the litigation and its consequences if he fails to establish his claim and to provide indemnity to the stakeholder against 'any and all liability, loss, damage, costs and expenses, for and on account of the payment or recognition of such adverse claim or the dishonor of or failure to pay the check or failure to comply with other order of the person to whose credit the deposit stands on the books of said bank or trust company; * * *,' not merely to give the stakeholder an option to proceed as provided by the statute or to bring a bill of equitable interpleader to the detriment of the depositor, who had legal authority to demand payment and give full acquittance to the bank. The cited statute is remedial and will be liberally construed and applied to contracts existing prior to its passage. Tutwiler v. Tuskaloosa Coal, Iron & Land Co., 89 Ala. 391, 7 So. 398; Coosa River Steamboat Co. v. Barclay, 30 Ala. 120; Modern Order of Praetorians v. Merriman, 204 Ala. 197, 85 So. 473.

The complainant was fully advised of the facts, the provisions of the contract on which its rights and duty and those of the defendant Mrs. Perdue rested and for whose benefit the deposit was made and that she could give full acquittance for the debt.

It is our opinion that the demurrer to the bill was well taken and the court erred in overruling the same. A decree will be here entered sustaining the demurrer and remanding the cause for further proceedings not inconsistent with this opinion. The complainant is allowed thirty days from the date the mandate of this court reaches and is filed with the register within which to plead.

Reversed, rendered and remanded.

FOSTER, LAWSON, SIMPSON and STAKELY, JJ., concur.

On Rehearing

PER CURIAM.

Upon further consideration upon application for rehearing we have concluded that on the original hearing an erroneous construction was placed upon the Act which appears in the 1947 Pocket Part of the Code of 1940 as Tit. 5, § 128(3). It appears that the Act has been adopted in various other states. The necessity for it and its purpose is stated in Gendler v. Sibley State Bank, D.C., 62 F.Supp. 805, 810. The Act is designed to apply to a case where the deposit stands on the books of the bank to the credit of one or more persons and where adverse claim to the deposit is made by a stranger. In such event the bank would be justified in allowing withdrawals by the depositors unless the stranger had furnished the bond and affidavit required by the statute. Accordingly the statute does not apply to a case where the names of both claimants appear as depositors. In the present case L. H. Perdue was shown on the deposit contract as a depositor just as was Ellen Perdue.

In Baden Bank of St. Louis v. Trapp, Mo.App., 180 S.W.2d 755, in which this uniform statute was construed it is held that the term 'adverse claimant' as used in this statute means one who is not shown on the books of the bank as a depositor. Under this construction of the statute the guardian of L. H. Perdue is not an 'adverse claimant' to the deposit within the meaning of the statute and the bank had no right to exact a bond from him.

In the case of First National Bank of Portland v. Reynolds, 127 Me. 340, 143 A. 266, 268, 60 A.L.R. 712, it was held that the Maine statute, identical with the Alabama statute, does not deprive the bank of the remedy of interpleader. The Supreme Court of Maine said: 'Nor can we agree that the demurrer should have been sustained on the ground that section 5, chap. 150, P.L. 1923, provides a complete, adequate, and exclusive method of which disputes concerning the title to bank deposits may be determined. That statute was intended to supplement, not to supersede, interpleader. It may be applied where interpleader will not lie. It is not unlikely that it might be properly invoked in certain cases in which interpleader would be an appropriate remedy. It is permissive. It provides one means by which the title to a bank deposit may be, under some circumstances, litigated. There are still other methods to reach that end. One of them is pointed out in Hatch v. Caine, 86 Me. 282, 29 A. 1076. But the remedy of interpleader is still an appropriate remedy, where interpleader will lie, notwithstanding the adoption of the statute in question.'

It is not pertinent to the issues in the instant case to pass upon the...