Hinds v. Southwestern Savings Ass'n of Houston

562 S.W.2d 4, 1977 Tex. App. LEXIS 3738

• Court: Court of Appeals of Texas
• Decided: December 29, 1977
• Docket: 8053
• Status: Published

Opinions

DIES, Chief Justice.

Plaintiff below, Lucille Hinds, sued Southwestern Savings Association of Houston, defendant below, to recover a sum of money deposited in a joint account by plaintiff and her former husband in defendant’s institution. The money was deposited prior to 1969, and the language of the signature card required that signatures of both husband and wife for any withdrawal from such account so long as both parties were alive. On or about January 4, 1969, her former husband was paid the entire deposit by the defendant. She brought this suit on March 24, 1976. Defendant filed a motion for summary judgment, which the trial court granted, and from which plaintiff perfects this appeal. Since the parties concede that the two-year statute of limitations is inapplicable, the sole question for us to decide is the date the four-year statute of limitations began to run.

Plaintiff’s affidavit in opposition to the motion for summary judgment states: “On or about April 9, 1972, I, for the first time, learned upon inquiry at Defendant’s main branch, that the sum of $11,022.37 was missing from the account in question.”

The general rule is that where a deposit of money is made, the statute of limitations begins to run in favor of the depositor only on demand and refusal or the assertion of some adverse claim by the depositary. 54 C.J.S. Limitations of Actions § 145 at p. 71 (1948). See also Delaney v. Farmers State Bank in Merkel, 115 S.W.2d 736, 739 and 740 [(Tex.Civ.App.—Eastland 1938) reversed on other grounds, 134 Tex. 160, 133 S.W.2d 757 (1939)]. In First State Bank v. Shannon, 159 S.W. 398, 401 (Tex.Civ.App.—Amarillo 1913, writ ref’d), we find, “. . . the statutes of limitation did not begin to run until demand and refusal to pay”; and in Farmers’ Nat. Bank v. J. W. Wallace & Co., 263 S.W. 1105, 1107 (Tex.Civ.App.—Texarkana 1924, no writ): “It is conceded that limitation does not begin to run against a claim for bank deposits until after demand and refusal of payment.”

In Yeaman v. Galveston City Co., 106 Tex. 389, 167 S.W. 710, 723-724 (1914), our Supreme Court said:

“The holding of these authorities is upon the principle that the trusteeship of a corporation for its stockholders is that of an acknowledged and continuing trust. . It has all the nature of a direct trust, to which, it is generally held, statutes of limitation have no application until there is a clear and unequivocal disavowal of the trust, and notice of it brought to the cestui que trust.”

We see no reason not to apply this principle to a savings and loan institution holding money for depositors, especially since the statute Tex. Rev. Civ. Stat. Ann. art. 852a, § 6.08 (Supp.1977) expressly condemns such an institution from doing what defendant did here.

We believe the affidavit of Lucy Hinds raises a fact issue; hence the granting of the summary judgment was improper. Gibbs v. General Motors Corporation, 445 S.W.2d 589 [(Tex.Civ.App.—Eastland 1969) reversed 450 S.W.2d 827 (Tex.1970)]. The order of the trial court is reversed, and the cause is remanded for trial.

REVERSED and REMANDED.