Opinion
7 Div. 928.
April 11, 1918. Rehearing Denied May 9, 1918.
Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.
P. F. Wharton, Harvey A. Emerson, and Rutherford Lapsley, all of Anniston, for appellants. W. W. Whiteside, of Anniston, for appellee.
Appellee filed this bill of interpleader to have determined the ownership of certain certificates of bank deposit claimed by the appellants. We need notice only two propositions:
1. Appellants contend that since appellee holds mere evidences of debt, while the banks hold the money and are answerable to the true owner, the bill is not necessary to the protection of appellee against any hazard, vexation, or expense of more than one action. The certificates of deposit in dispute are, in effect, negotiable promissory notes (2 Michie, Banks and Banking, 1271), and they promise payment upon their return or surrender properly indorsed. This stipulation for a return or surrender was for the safety and convenience of the banks, and constituted the certificates representatives or symbols of the deposits in such sort that even their mere delivery with the intention to pass title to the deposits would so operate in equity. Venturi v. Silvio, 197 Ala. 607, 73 So. 45. This consideration augmented perhaps the importance of the evidences of debt held by appellee as a bailee, a trustee of a sort, though without it we have no doubt appellee, if otherwise in the position of a disinterested stakeholder, should be allowed to secure a delivery of the certificates to their true owner, and his peace, by a bill of interpleader. Both the suggested claimants are claiming the same things of appellee through a common source — things valuable, if as evidence only, the delivery of which to the rightful owner may be compelled at the end of a lawsuit. That the banks, which also are brought in as parties defendant, by appropriate proceedings may have been able to protect themselves against the conflicting claims of the appellant defendants, furnishes no reason why appellee, in the absence of action by the banks, should not be allowed to maintain his bill for a similar purpose.
2. Appellants' next insistence is that appellee has incurred an independent liability to one of the claimants, and does not stand as an indifferent stakeholder between them — this for the reason, to state the substance of appellants' contention as we find it in the brief, that appellee as attorney and confidential agent for Thos. H. Owens, whose administrators on one hand claim the certificates of deposit and the money they represent, made deposits to the credit of Owens, and that while he was still such attorney and agent, and when he learned that his client had indorsed the certificates to his sister Mary J. Mount, whose administrator is the other claimant, induced Owens to execute the instrument in writing, a copy of which is attached to the bill as Exhibit C, and will appear in the report of the case. We find nothing, even in this statement of the case, sufficient to establish appellee's enlistment on the side of either claimant, unless indeed some such result may be inferred from the allegation that appellee induced Owens to execute the paper referred to as Exhibit C. But, on fair interpretation, the bill shows no pernicious activity on the part of appellee. How the certificates received by appellee from the banks, for and in the name of Owens, were converted into the certificates in dispute, which are payable to Mary J. Mount, and how the last-named certificates came into the possession of appellee, are facts which are made to appear in the third, fourth, and ninth paragraphs of the bill. Our opinion is that they show no departure by appellee from the line of his duty as attorney for Owens, nor anything to indicate an intent to bend the will of Owens, in disposing of his property, to or against Mary J. Mount. Moreover, appellee received the certificates in dispute, after the death of Owens, from the hands of W. H. Johnson, "as agent of Thos. H. Owens," and while the averment is that appellee received them "with the request that your orator [appellee] hold and retain the same as the property of the said Thos. H. Owens until requested to surrender and deliver the same," these certificates, as stated above, were payable on their face to Mary J. Mount. Obviously appellee's duty under his bailment is to surrender the certificates to whomsoever has the right to them in succession to Thos. H. Owens, deceased, under whom all defendants claim, and no sufficient reason is perceived for denying to him the advantage of the position he has assumed in the filing of this bill, that is, the position of a mere stakeholder, standing perfectly indifferent between the suggested claimants. Gibson v. Goldthwaite, 7 Ala. 281, 42 Am. Dec. 592. He seeks and is entitled to receive, not immunity from a double liability, but freedom from the harassment of two suits for the same demand. "The office of an interpleading suit is not to protect a party against a double liability, but against double vexation in respect of one liability." Crawford v. Fisher, 1 Hare, 436.
The decree of the circuit court, overruling the demurrer to appellee's bill is affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.