In determining whether title to funds passes to a depositary bank, regard must be had to the agreement under which the deposit is made and to all the conditions and circumstances of the arrangement and the legal character of the transaction. The naked fact that the bank was operating with reference to the money herein involved under an escrow agreement carried much legal significance. (Second paragraph of syllabus in Fulton, Supt. of Banks, v. University of Dayton, 129 Ohio St. 90, approved and followed.) 6. Under the circumstances of this case it was not necessary to follow this money in specie or trace it into a particular fund. It is enough that the Superintendent of Banks has in his custody funds of such bank sufficient to satisfy the preference in full or pro tanto.
Nor did the trust company ever regain the solvency which would have enabled it to honor any withdrawal from these accounts. In the case of Fulton, Supt. of Banks, v. Escanaba Paper Co., 129 Ohio St. 90, 193 N.E. 758, this court held: "In determining whether title to funds deposited has passed to the depositary bank, regard must be had to the agreement under which the deposit is made, and to all the conditions and circumstances of the arrangement.
Such a deposit gives rise to the relationship of debtor and creditor. Fulton, Supt. of Banks, v. Escanaba Paper Co., 129 Ohio St. 90, 193 N.E. 758; Busher, Clerk, v. Fulton, Supt. of Banks, 128 Ohio St. 485, 191 N.E. 752. Money deposited for a definite purpose without any agreement or understanding that it shall not be used by the depositee for its own purposes is a general deposit for a specific purpose or, as it is sometimes called, a specific deposit and creates the relation of debtor and creditor just as in the case of a general deposit. Squire, Supt. of Banks, v. American Express Co., 131 Ohio St. 239, 249, 2 N.E.2d 766; Squire, Supt. of Banks, v. Oxenreiter, 130 Ohio St. 475, 200 N.E. 503. The credit in the due-borrowers account was certainly neither a general nor a special deposit. It is therefore necessary to inquire whether it was a general deposit for a specific purpose. If such, it is taxable.
It is to be noted in the instant case that the agreement of these parties bears the date of February 15, 1933. We note that Section 710-165, General Code, was by the Legislature of Ohio amended, effective June 14, 1933, so that this action is to be governed and controlled by Section 710-165 as it existed prior to June 14, 1933. For a proper decision of the instant case we are of the opinion that the cases of Fulton,Supt. of Banks, v. Escanaba Paper Co., and Fulton, Supt. of Banks, v. University of Dayton, 129 Ohio St. 90, 193 N.E. 758, are applicable. The Supreme Court therein held: "1.