Opinion
Nos. 24627 and 24823
Decided June 20, 1934.
Banks and banking — Deposit presumed general, when — Deposit by trustee not impressed with new trust, when — Liquidation — Deposit by sheriff not preferred.
1. In the absence of evidence to the contrary a deposit in a bank is presumed to be general in its nature.
2. When a trustee properly deposits trust funds in a bank they are not thereby impressed with a new trust solely by reason of their original trust nature.
3. A sheriff who makes such a deposit is not entitled to a preference in the event of the subsequent insolvency of the bank.
ERROR to the Court of Appeals of Delaware county.
CERTIFIED by the Court of Appeals of Putnam county.
These cases were presented together, and involve similar questions.
In the Delaware county case Sheriff Veley E. Main instituted an action to declare a trust and preference with reference to the sum of $3,300 deposited by him in his general account with The Deposit Banking Company. According to the agreed statement of facts this was money obtained from certain real estate which the court had ordered sold for the payment of delinquent taxes. The decree of the Court of Common Pleas was in favor of the plaintiff. Upon appeal the Court of Appeals rendered a similar decree. The case is in this court by reason of the allowance of a motion to certify.
In the Putnam county case Sheriff Wilson Crawfis filed an action asking judgment for a balance of $2,132.90, consisting of various funds deposited by him from time to time in his general account with The Bank of Ottawa Company. When the case came to trial a jury was waived. The court rendered judgment in favor of the plaintiff for the full amount, and also decreed a trust and preference with reference thereto. Upon the prosecution of the proceedings in error the Court of Appeals reversed the judgment and decree of the Common Pleas Court and entered final judgment for the defendant. The case was then certified to this court on the ground that the decision is in conflict with that in the Delaware county case.
Mr. John W. Bricker, attorney general, Mr. J. Roth Crabbe, Mr. E.T. Humes and Mr. D.M. Cupp, for plaintiff in error; Mr. Winston W. Hill, for defendant in error, in Cause No. 24627.
Mr. Joseph J. Labadie, prosecuting attorney, for plaintiff in error; Mr. John W. Bricker, attorney general, and Mr. J.C. Williamson, for defendant in error, in Cause No. 24823.
The operative facts in each case are simple and require no extended treatment. Each plaintiff occupied the office of sheriff of his county; each had an account with his bank, and carried it simply in his own name as sheriff; into his account each currently deposited and subsequently withdrew therefrom the various monies that passed through his hands by reason of his official duties; and, furthermore, neither made a special contract with reference to the relationship existing between himself and his bank. Counsel agree that each sheriff received his money in the capacity of trustee for the individuals for whom it was held. But it is important to note that these are not actions between the sheriffs and their cestuis que trustent; neither are they actions between these cestuis que trustent and the banks. It must at all times be kept in mind that they are actions simply between the sheriffs and their banks, now in the hands of the Superintendent of Banks for liquidation. Of course, each sheriff could have entered into a definite trust relationship between himself and his bank irrespective of whether the funds passing through his hands were held by him in trust. But no such situation is involved in the instant cases.
Under the circumstances here existing, what was the relationship between the sheriffs and their banks? Was it that of trustee and cestui que trust, or was it merely that of debtor and creditor? Was a new trust relationship automatically created between the sheriffs and the banks because of the single fact that such a relationship already obtained between the sheriffs and the various persons for whom these monies were held? It is urged by the sheriffs that the situation is controlled by Section 12875, General Code, the pertinent part of which reads as follows: "Nor shall the provisions of section twelve thousand, eight hundred and seventy-three, make it unlawful for a county auditor, county treasurer, probate judge, sheriff, clerk of courts, or recorder, to deposit fees and trust funds coming into their custody as such officers as above, until such time as said aforesaid officers are required to make payment of the official earnings of their offices, so deposited, into their respective fee funds as required by section twenty-nine hundred and eighty-three, and until such time as the trust funds, so held by them in their official capacities, may be paid to the person, persons, firms, or corporations, entitled to same, and any interest earned and paid upon said deposits shall be apportioned to, and become a part of said fees or trust funds, and shall in no instance accrue to, and be received by, the official making said deposits, for his own use." However, from a study of this language it is readily apparent that the mere authorization to deposit trust funds does not in any manner control the nature of the relationship between the sheriff and the bank. Furthermore, it creates no depositary for a sheriff.
It is a fundamental rule of trust and banking law that a deposit in a bank, unless it appear otherwise, will be presumed to be a general one; thus, a deposit to the account of the depositor without being complicated by a special contract as to when, how, to whom or under what circumstance, or upon whose order, it is to be paid out, is a general deposit; if any other kind of deposit is claimed to have been made, it should specially set forth what sort of deposit it is. 5 Ohio Jurisprudence, 380. Bank of Marysville v. Windisch-Muhlhauser Brewing Co., 50 Ohio St. 151, 33 N.E. 1054, 40 Am. St. Rep., 660. Inasmuch as the instant cases involve no special contract the deposits are presumed to be general.
It is also a general rule of law that the mere fact that the funds deposited in a bank are held by the depositor in a fiduciary capacity does not, if they were properly deposited, impress upon them a trust in the hands of the bank so as to entitle the depositor to a preference in the event of the insolvency of the bank. Vol. 1, Perry on Trusts, 175; 37 A. L. R., 120; 53 A. L. R., 564; McLain v. Wallace, Recr., 103 Ind. 562, 5 N.E. 911; Shaw v. Bauman et al., Exrs., 34 Ohio St. 25.
In the case of Officer v. Officer, 120 Iowa 389, 94 N.W. 947, 98 Am. St. Rep., 365, the deposit was made in the name of the executor, as such. The third paragraph of the syllabus reads: "Where an executor makes a general deposit of trust funds in a solvent bank, neither he nor the cestui que trust, in case of a failure of the bank, has any preference over other creditors, though the bank knew the character of the deposit."
To the same effect is the following syllabus in the case of Paul v. Draper, 158 Mo., 197, 159 S.W. 77: "A fund deposited in a bank by a guardian and curator of minors known by the bank to be so deposited by him as trustee for them, can not be paid in preference to the claims of other depositors, unless there is something in the circumstances of the deposit to constitute it a special deposit (that is, something which precludes the bank from mingling it with the general moneys of the bank), for if it was a general deposit the title thereto passed to the bank and the relation of debtor and creditor between the bank and guardian was created, and not that of trustee and cestui que trust."
Of like import is the following language in the syllabus of the case of People, ex rel. Nelson, v. Home State Bank, 338 Ill. 179, 170 N.E. 205: "A general deposit is a deposit generally to the credit of the depositor, to be drawn upon by him in the usual course of the banking business, while a special deposit is a deposit for safe keeping, to be returned intact on demand or for some specific purpose not contemplating a credit on general account; and a deposit in a bank is presumed to be a general deposit in the absence of an agreement to the contrary.
"The facts that funds in the hands of a fiduciary are deposited as trust funds and that the depositor is described in the pass-book by words indicating his fiduciary character do not, alone, render the deposit special, and in the absence of evidence making the deposit special the depositor becomes a creditor of the bank and stands upon the same footing as other creditors and is entitled to no preference, the bank simply becoming indebted to him in his representative capacity."
Counsel for the plaintiffs rely upon the decision of this court in the case of Smith v. Fuller, 86 Ohio St. 57, 99 N.E. 214, L.R.A., 1916C, 6, Ann. Cas., 1913D, 387, in which the court impressed a trust upon the funds deposited in a bank by trustees. However, that case is distinguishable from the instant cases in that the trustees were held to have no authority to make a general deposit.
Consistent with the foregoing views the judgment of the Court of Appeals in the Putnam county case is affirmed, and that in the Delaware county case is reversed and final judgment entered for the plaintiff in error.
Judgment reversed in Cause No. 24627. Judgment affirmed in Cause No. 24823.
STEPHENSON, JONES, MATTHIAS, BEVIS, ZIMMERMAN and WILKIN, JJ., concur.