Opinion
(Filed 9 October, 1918.)
Appeal and Error — Dividend Court — Judgments — Bank and Banking — Deposits — Claimant — Notice — Issues — Answers — Opinions.
The matters for decision on this appeal are whether the defendant bank is responsible to the true owner for paying the depositor, under the facts of this case, after notice given to it by owner that the money was her own, and not that of the depositor; and whether the findings to the issues submitted were irreconcilable and a new trial should be ordered. The Court being equally divided, BROWN, J., not sitting; CLARK, C. J., writing an opinion; HOKE, J., concurring; WALKER and ALLEN, JJ., each writing a dissenting opinion. The judgment of the lower court is affirmed without being a precedent.
APPEAL by defendant from Bond, J., at February Term, 1918, of BEAUFORT.
Ward Grimes for plaintiff.
Small, MacLean, Bragraw Rodman for defendant.
This is an appeal by the defendant bank from a judgment requiring it to pay the plaintiff Minnie Miller $800 and interest. The complaint alleged that her husband, G. H. Miller, had fraudulently procured said $800 from her, and with the fraudulent purpose to convert it to his own use and unknown to her, had deposited it in the defendant bank in Washington, N.C. in his own name, but notwithstanding the notice to the bank from her of such facts and of the attendant circumstances, and her notice not to pay out the same to him, and though knowing that she was getting out an attachment upon said sum, the bank paid out the said money to G. H. Miller, who immediately absconded and left the State. The plaintiff says she handed him the money to put in the bank at Belhaven, where she lived.
The jury found upon the issues submitted that when the bank paid said fund over to G. H. Miller, the plaintiff Minnie Miller was the equitable owner of said deposit; that the bank knew that she claimed to own said fund, and knew, or had reason to believe, that she was getting out proceedings to have the same attached.
There was evidence that the said G. H. Miller was the second husband of the plaintiff, who had four children by her first husband, and that she mortgaged her home to procure this $800 to go into business with Miller, and gave it to him to deposit in the bank at Belhaven, where they lived, but without her authority he put it in the bank at Washington in his own name, and threatened to leave the State; that suspecting his purpose, she consulted a lawyer in Belhaven, who put her in phone communication with his partner, Mr. McMullen, a prominent lawyer in Washington, whom she notified that she would arrive on the next train. He took her in his car to the bank and saw the cashier, whom, as she testified, she told "all about" the circumstances, and that her husband was drinking and intended to defraud her of said sum. The cashier, while declining to admit that the money had been deposited by the husband, intimated to the plaintiff's lawyer, Mr. McMullen, who was also a director in the bank, that he could take out legal proceedings to stop payment. Mr. McMullen, after advising the cashier not to pay the money to plaintiff's husband, returned to his office with the plaintiff to get out proceedings in attachment. The defendant's cashier, knowing of this purpose, in a very short time, called up Mr. McMullen and told him he need not proceed any further, that he had paid out the $800 to Mr. G. H. Miller. The latter, having discovered his wife's purpose, had come through the country in an automobile, and, presenting himself to the cashier, after the plaintiff's notice to him that it was her property deposited with her husband for a certain specified purpose, and that he was intending fraudulently to convert it to his own uses, the cashier paid out the full amount thereof to him while attachment proceedings were being prepared. Miller immediately left the State and his whereabouts are unknown.
When a bank has reasonable notice of a bona fide claim that money deposited with it is the property of another than the depositor, it should withhold payment until there is reasonable opportunity to institute legal proceedings to contest the ownership. For a much stronger reason, a bank should withhold payment when it has notice, as in this case, not merely that the title to the fund is in question, but that it has been deposited without the authority of the owner, with the fraudulent intent on the part of a trustee or agent to convert to his own use funds placed with him in trust.
Suppose the bank was notified that funds placed on deposit had been stolen by the depositor? The bank surely under such circumstances could not be justified in paying over said fund to the depositor. This is so, also, as a matter of public policy in cases where an agent or official deposits with a bank funds which it has notice that he has embezzled. The bank could not in such cases pay over such sum to the depositor without being a "fence."
In this case if there was not embezzlement, the evidence is uncontradicted that the bank had notice that the plaintiff claimed that said G. H. Miller had by false pretenses procured his wife to mortgage her home to procure said $800, and had induced her to place the same in his hands for a specified purpose with the intent in breach of his trust to convert same to his own use. The defendant, with notice of these allegations made to it by the plaintiff, and with knowledge that said lawyer was preparing attachment proceedings, in a few minutes thereafter nevertheless paid out said fund to the husband, who immediately absconded. In the verdict and judgment holding the defendant liable for such payment there was no error. Stair v. Bank, 53 Pa. St., 364; 93 Amer. Decis., 759; Bank v. Mason, 95 Penn. St., 117; McDermott v. Bank, 100 ib., 287. Bank v. Mason holds that the deposit is but prima facie evidence of the ownership of the fund by the depositor. McDermott v. Bank holds that money deposited in a bank to the credit of one person can be shown to be the property of another. It is also held in Bank v. King, 57 Penn. St., 206, that the deposit of money belonging to a trust fund by a trustee in his own name does not change the title thereto.
In such cases, when notice is given to a bank, it will pay the depositor at its own risk. Bank v. Bache, 71 Penn. St. (21 P. F. Smith), 213, citing Bank v. King, 7 B. P. Smith, 202. To the same purport Bank v. Gillespie, 137 U.S. 411, and annotations thereto in Rose's Notes.
In Tiffany on Banks, p. 50, it is said, "After receiving notice of an adverse claim, the bank will pay its depositor at its peril. . . . Payment to the equitable owner will, of course, always be a defense," citing Brown v. Bank, 51 Kan. 359; Commission Co. v. Gerlack, 92 Mo. App. 326; Adams v. Shoe and Leather Co., 9 N.Y. Supp., 75.
In Morse on Banks (3 ed.), sec. 342, it is said: "A bank is justified in paying to the depositor, or his order, until the fund is claimed by some other person. But if notified that the funds belong to another, it will pay the depositor at its peril. If it has notice that a third person claims under a superior title and intends to enforce a claim adverse to the depository, the bank should hold the funds until the title is settled, or take a bond of indemnity; otherwise it may be a loser," citing several cases.
In our own State, Bank v. Clapp, 76 N.C. 482, holds that where the bank participants with the trustee in the misapplication of a fund, it is liable to the cestui que trust for any loss sustained thereby. In this case, while the bank did not actively participate in the sense of receiving any benefit therefrom, it was liable for its negligence, to say the least, in not holding the fund under all the circumstances till the plaintiff could take out legal proceedings and prove her allegations of being the beneficial owner of the fund, as she has since done in this action. The whole evidence shows the evident good faith of the plaintiff. Besides, the jury find that she was the direct owner of the deposit.
There is no evidence impeaching her character. On the contrary, two witnesses testified to her good character, and none to the contrary.
There is no defect in that the absconding husband is not a party to this proceeding. He has no possible interest in this action, for he has received the fund, and the judgment herein cannot affect him in any way. It would have been otherwise if the fund had not been paid over, but was still in litigation, and in that event the bank might have made him a party by publication. As it is, "The subsequent proceedings interest him no more."
It is true that the jury also found that the plaintiff did not notify the bank "that the $800 was her money and why it was in the bank and request the bank to hold it until she could have it attached," but in view of the fact that the jury found that the plaintiff was the equitable owner of the $800 when it paid Miller the money, and that it knew at the time that it paid him that the plaintiff claimed to own the money, and that it knew, or had reason to believe, that the plaintiff was proceeding to have the same attached, judgment was properly entered for the plaintiff. It was not essential that she should have notified the bank that it was her money, and why, and request the bank to hold it until she could have it attached when it is found that she was the real owner; that the bank knew she claimed to own the fund and knew, or had reason to believe, that she was proceeding to have it attached.
The statement of ten of the jurors after they were discharged that they intended to find a verdict for the defendant bank was a legal inference and was disregarded by the court. It was a matter which rested within its discretion. If verdicts must be set aside as a matter of law upon such representations of a jury after its discharge, it will encourage proceedings that will be altogether unseemly in the practice of the courts and in the due administration of justice. The action of the judge in such cases must necessarily be left to the discretion of the presiding judge, who has full knowledge of the attendant circumstances, and possibly of much which does not appear in the record.
Upon the findings of the jury the judge properly entered judgment for the plaintiff.
The geologist upon the examination of a lump of coal can discover the species of trees of which it was composed eons ago. The layer of sandstone or of marble will show the raindrops and the footprints of passing animals when these substances were yet plastic with heat. Amber and other substances retain the insects that lighted upon them. From these substances the scientists can rebuild the story of thousands of years ago when man or semi-man, or beast, was floundering in the bogs and swamps where now stand the solid hills or spread out are the smiling plains. So in the dry records of legal proceedings are embalmed many a tale of wrong and of woe which can be deciphered by some future historian, but in few of them can be found a more pathetic or moving kinema of life than is shown in this case.
In this instance four helpless little children were left to the care of their widowed mother, who seemed to them a deity on earth — and to them such she was, for she alone stood between them and the cold and want and hunger of a heartless world. Their father despairing in the struggle of life, or perhaps with a diseased brain, and despondent, unsummoned and uncalled, struck by a suicide's hand staggered out of life into the great silence. In some sane and unselfish moment he had insured his life. With this the mother of these children bought an humble home. Then came the prowling wolf in human shape.
With the plea that by the union of his labor and her little capital conditions could be bettered, he proposed marriage and a union of his labor and of her money, the latter to be raised by an $800 mortgage on the little home. The appeal to mother love, the most divine spark that this world holds, was irresistible. The marriage made, the $800 raised on the mortgage was given to the deceiver by the mother, to be placed in the bank where they lived. The enterprise had not yet been begun. The money was still the mother's (as the jury found). The agent, false to his trust, and without the plaintiff's authority or knowledge, placed the fund in his own name in the defendant bank, in a town 30 miles away. Learning of this, and that the trustee intended to fly the State, the frightened mother, unknowing at first what to do, was at last advised by counsel, and, hastening to Washington, N.C. by rail, in company with a director of the defendant bank, told the cashier (as the jury find) that she claimed the fund, and the jury find also that she owned it and that the bank knew she would at once take out legal proceedings to attach it. In the meantime the false depositor, having been informed by wire or otherwise by some one, rushing through the country by automobile and getting to the bank, the defendant promptly paid the plaintiff's $800 over to him, and he disappeared "over the rim of the world," and his whereabouts are unknown to this day, according to the evidence. The defendant knew that the plaintiff's counsel was preparing papers to protect her rights as owner of the fund (as the jury find she was), for he phoned her counsel that he need not proceed, for he had paid out the fund to the defaulting and fugitive depositor. "Then all the Greeks took Sosthenes, the chief ruler of the synagogue, and beat him before the judgment seat, and Gallio (the governor and judge) cared for none of these things." Acts xviii, 16. The defendant cared not that the true owner should lose the fund, and that the defaulter should make off with it before the plaintiff, by legal proceedings, could protect the rights of herself and of her helpless children in the protecting fund left by their father.
The swindling defaulter has disappeared, no man knows where, and the plaintiff's money, the hope of her four little children, disappeared with him. The mortgage, however, remains and sticks closer than a brother, and with it and the court costs will go the roof from over their heads, unless speedy justice is rendered. Inspiration tells us that above the roof of that humble home is God and His Heaven, and poetry tells us that the stars are always shining there, but remove that shelter, and the snows and sleets and the winds of winter will come till the deceived and despairing mother, like the widow of Blennerhassett, perchance, "may be found alone at midnight, mingling her tears with the torrents that freeze as they fall."
It was easy for the defendant to regard only its own interests, and, careless of the rights of the plaintiff turn over the fund to the deceiver and the defaulter, while the plaintiff, as it knew, was endeavoring to complete the legal proceedings to enable her to assert her rights. The Court might lightly order a new trial, but the mortgagee will need his principal and interest when they are not forthcoming. There must be money for the lawyer and the witnesses, and there shall be the delays of justice "which maketh the heart sick," while the little children may lack shelter and cry for bread.
The plaintiff's $800 (for the jury find it was hers) was wrongfully paid out by the defendant in July, 1915, three years and two months ago, and the plaintiff has already lost more than $150, interest on money which she has not, besides the lawyer's fees and the loss of time attending court, and other expenses, to recover her own. Is not this enough? Justice is "lame in its feet," like Mephibosheth, the son of Jonathan (2 Sam. iv, 4), and moves slowly. The Scriptures are full of injunctions to give judgment in righteousness for the protection of the "widow and the fatherless."
Have those fatherless little children no rights, which the courts can consider, in the shelter provided by the foresight of their unfortunate father — children of whom God, when He walked the earth, said that of such in heart were His kingdom?
The court and jury have said that the frantic and deceived mother was the true owner of that home, which she devotes to her children. Why protract litigation till interest and costs of litigation shall take it from them? The story of the fair-haired wife of Sparta's king,
"Whose face launched a thousand ships And sacked the topmost towers of Troy."
as told by the blind old bard, still moves the hearts of men, after the lapse of thirty centuries, in proof of the might and majesty and power of the beauty that is woman; but there is greater power, because more universal and more pathetic, in that mother love which dares do, and does, all for her children — a love which knows neither time nor place nor limit.
The human heart is like an Eolian harp, tuned and trembling to the touch of every wind that whispers by, making music, sad or sweet, as the breeze shall blow.
Women and children are the great heart of the world. Without them, there can be no future. Helpless they may seem, but the very continuance and existence of all humanity hang upon them. Justice should have no sword sharper, more sudden, or surer than that which should be drawn against the heartless swindler who would condemn them to poverty and want, as in this case, or wear a sterner face than against the "careless Gallio," whose indifference has made possible the consummation of such crime.
There is in this record nothing whatever that calls in question the good character, which is shown by two witnesses and not contradicted, and the absolute good faith, of the unfortunate mother; nothing to mitigate the atrocious iniquity of the absconding swindler, and nothing to palliate the careless indifference of the defendant bank, which paid the plaintiff's money to the defaulter, though knowing she claimed it and was even then getting out proceedings to protect her rights.
The judge attached no importance to the defendant's ex parte dealings with the jury after verdict. It is no discredit to the plaintiff or her lawyer that she did not enter into competition along that line. The defendant should look to get the money back from the party to whom it was paid out by its own negligence, against the protest of the true owner.
In this case four opinions have been filed, but Judge Brown, being a stockholder in defendant bank, does not sit, and, the Court "being evenly divided, the judgment is affirmed." The opinions in favor of affirmation (like those of a contrary view) express the views of each writer only, the conclusion alone that there "being an even division, the judgment is affirmed," is the act of the Court, by operation of law.
In the English courts, until a recent period, each judge gave his opinion in every case, and this was true in the early Reports of this Court, and of the United States Supreme Court to a large extent. The custom of filing only one opinion, which is adopted by all the court (except when there is a dissent) was to save time, and also space in the volume of Reports, but it has always been open to any judge to express his views, whether he agrees with the majority or dissents, or when there is an even division of opinion.
The purpose to be served in filing opinions is to give the reasons actuating the Court, and this applies as much to dissenting opinions and to opinions on a divided court as where there is unanimous opinion. If the reasons given cannot be sustained, upon examination, by the bar and by public opinion, as sound, sooner or later the ruling is reversed by the Court itself, or is cured by legislation.
There is even more cause to give the views of the members where the Court is evenly divided than when one or two members dissent, for it is especially necessary when the Court is evenly divided that the reasons for differing conclusions reached by the members of the Court should be stated, that they may be considered and that the sounder reason, which, under our form of government, it is assumed, will ultimately control, may be adopted in some future opinion, or that legislation may cure the situation.
There is no decision or rule, nor, indeed, is there any power, in any court to control the vote or the expression of the views of any judge, whether by a dissenting or a concurring opinion, or when the Court is evenly divided. Indeed, an examination shows that opinions are more generally filed when the Court is evenly divided, and naturally so, because, as above stated, when the Court is evenly divided, the reasons urged on each side are more important to be given to the public, that on further consideration it may be determined where the right lies.
The first time that this Court laid down the doctrine that when the Court is "evenly divided the judgment below must be affirmed" was in Durham v. R. R., 113 N.C. 240, in an opinion written by the writer of this. The Court did not lay down the rule that in such cases no opinions should be filed, but said, "The judgment below stands, not as a precedent, but as a decision in this case," and in all subsequent cases no different rule has been asserted. On the contrary, in Ward v. Odell, 126 N.C. 946, there were two opinions filed — one on each side. In the same volume, Boone v. Peebles, p. 824, there was only one opinion, which was in favor of affirming the judgment, but it was stated in both cases that the Court was evenly divided, and therefore the judgment below was affirmed.
In Durham v. R. R., supra, in which the Court laid down this rule, five opinions from the United States Supreme Court and one from Massachusetts were cited as sufficient authority for the proposition, and in each of those, while the judgment below was affirmed, upon an evenly divided Court, opinions were filed.
The cases cited, first, were Etting v. Bank, 24 U.S. (11 Wheat.), 59, in which Marshall, C. J., writes an opinion on the merits, which he concludes by saying: "The principles of law which have been stated cannot be settled, but the judgment is affirmed, the Court being divided in opinion upon it."
In the next case, Benton v. Woosley, 37 U.S. (12 Pet.), 27, Taney, C. J., writes an opinion on the merits, but concludes by saying that, the Court being equally divided, the judgment below is affirmed. In Holmes v. Jennison, 39 U.S. (14 Pet.), 540, the Court writes an opinion affirming the refusal of a writ of habeas corpus, but states in the conclusion that it was done by a divided Court affirming the judgment below. Five judges filed opinions in that case, which was one of great importance, and 159 pages are taken up in reporting the case.
The next case cited in Durham v. R. R., supra, was an important one also — Washington v. Bridge Co., 44 U.S. (3 Howard), 213, which affirmed the judgment by a divided Court, but there was an opinion for affirmance on the merits filed.
This Court also cited Durant v. Essex, 90 Mass. (8 Allen), 103, the opinion holding that a decision by an evenly divided Court affirming the judgment below, while not a precedent, has the "same efficacy in every respect as of the opinion had been rendered with all the judges concurring."
Since Durham v. R. R. was decided, in the famous income-tax case, Pollock v. Loan Trust Co., 157 U.S. 429, the judgment of the Court below was affirmed by an evenly divided Court. The report of that case occupies 226 pages, and two opinions were filed in affirmance and two for reversal. When that case came up on a rehearing ( 158 U.S. 601) the judge appointed to the vacancy voted for affirmance, but one of the judges who on the former hearing had voted for affirmance voted for a reversal, which was thus carried by a vote of 5 to 4. There were two opinions for affirmance filed, and all four of the dissenting judges writing opinions, among them the present distinguished Chief Justice of that Court. The report of the case occupies 215 pages. Never were dissenting opinions more valuable, for the American people have endorsed the views of the dissenting judges and written into the Constitution an amendment, without which it would have been impossible for this country to maintain the present great struggle for the maintenance of civilization and a democratic form of government on the earth.
Not to multiply instances, in Downes v. Bidwell, 182 U.S. 244, known as the "Insular Possessions Case," all nine of the judges expressed their views, the report of the case covering 154 pages. This was the case in which it was said that the Court had "filed nine dissenting opinions."
This Court has never held that it would file no opinion in any case, except on motions for "new trial for newly discovered testimony" ( Herndon v. R. R., 121 N.C. 498, and cases there cited, and citations in Anno. Ed.), and then only for the reason that, being not on the law, but purely upon the facts, which can never exactly recur in another case, an opinion would be of no benefit; but of course any judge has a right to file his views, even in such case, should he see fit. Even to per curiam decisions, which are decisions without any opinion by the Court, dissenting opinions have been filed, this matter being solely in the discretion of the judge. Harkins v. Cathey, 119 N.C. 658; Wyatt v. Mfg. Co., 116 N.C. 272, and there are others. In Thomas v. Fulford, 117 N.C. 667, there were five opinions, no two of which agreed on all points.
The Court being evenly divided, the judgment of the Court below is affirmed. Durham v. R. R., 113 N.C. 240, and citations thereto in Anno. Ed.
No error.
HOKE, J. I have given this case very careful consideration, and am of opinion that, on the record and verdict, the plaintiff is entitled to recover, and the judgment to that effect should be affirmed.
While fully recognizing the obligations and duty of a bank towards its depositor, the American courts have very generally held that when a bank has reasonable notice of a bona fide claim that money deposited with it is the property of another, it should promptly notify its depositor and withhold payment until there is reasonable opportunity afforded the claimant to institute legal proceedings in protection of his rights; and in some instances the bank itself is required before payment to institute proceedings and have the rights of the respective claimants determined. Commission Co. v. Gerlock, Mo. App., 326; Jaselli v. Riggs Bank, App. D.C. Cases, 159; Ry. Sav. Inst. v. Drake Laing, 25 N.J. Eq., 220; Wayne Co. Bk. v. Airy, 95 Mich. 520; 2 Mitchie on Banking, 976; Tiffany on Banking, 50.
By the verdict in the present case, it is established that plaintiff is the owner of the money deposited; that the bank knew that she claimed it, and that the bank also knew at the time of payment that plaintiff was then engaged in taking out legal process to assert and protect her rights. She had made inquiry of the bank about this deposit on the day in question, at 10:30 a. m., accompanied by her attorney, one of the bank directors; and the cashier, refusing, not improperly, to inform her of conditions, himself gave decided intimation that her proper course was a resort to legal procedure. Leaving the bank for that purpose, the money was paid out to the husband during the day, between 1 and 2 o'clock, according to her testimony and that of her attorney; and in the meantime a woman, unacquainted in the town, having to arrange a bond and to procure money for attorney's charges and court fees. The entire evidence, to my mind, shows that no fair opportunity was allowed her to protect her interest, and that the payment to her husband was made in violation of her rights; and, to my mind, there is no conflict in the findings of the jury on issues 3 and 5 1/2; the former, framed and designed to ascertain if the bank was aware at the time of payment that she was about to take out legal process; and the latter, whether she had notified the bank it was her money, explained the nature of her claim and requested it be held until she could have it attached. The entire charge of the court, and the different colloquies with the jury on the subject, show that issue 5 1/2 was especially designed to determine whether she had requested the bank to hold the money, and that the jury so understood it.
On the record, I am of opinion, as stated, that the plaintiff's rights in the matter are clearly and directly established by the verdict of the jury on the first three issues, and the result is not affected by the finding on the last issue.