Clisby v. Mastin

43 So. 742, 150 Ala. 132, 1907 Ala. LEXIS 412

• Court: Supreme Court of Alabama
• Decided: April 18, 1907
• Status: Published

Opinion

DENSON, J.

On a bill filed in the city court of Montgomery to have lands in which the complainant and the respondent in the bill were jointly. interested under tbe provisions of a will sold for reinvestment, a decree Avas rendered ordering the sale of the lands. The lands Avere 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. Avas 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 Avas 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 South. 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 amounted to a conversion by the register.

Furthermore, when the deposit was made, the register became eo instanti a debtor to the parties to whom of right the money belonged, and he and the surety on his. bond were bound' to absolute payment as for a debt; and a cause of action against the register .and his surety on the bond at once arose.—State v. Houston, 78 Ala. 576, 585, 56 Am. Rep. 59; Alston v. State, supra. The weakness in the surety’s insistence consists in the failure to take .into consideration the principles above annouced.

On the foregoing considerations it is manifest that the surety is liable for interest, and the city court erred in decreeing otherwise.

Reversed and remanded.

Tyson, O. J., and Haralrson and Simpson, JJ., concur.