To require payment of the funds * * * leaves the appellant bank in precisely the same situation where it stood at the time the deposit was made in relation to Gilbreath's indebtedness to it. By dictum, the Dallas Court of Civil Appeals in Curtis v. Hart, 1930, 26 S.W.2d 420, (no writ history) recognized this rule: "If the proceeds arising from the sale of the cotton raised on the Curtis farm were, when deposited in the bank by Hart, impressed with a trust in favor of Mr. Curtis to the extent of the rent note, plaintiffs (Curtis) should prevail, and this without regard to whether the bank did or did not have knowledge or notice of the existence of the turst. This because the bank could not be permitted to occupy the vantage ground of innocency, if it applied the trust fund in satisfaction of an antecedent debt due it by the trustee.
The fact that appellee had no notice of the change of the personnel of the firm is not a question in this case, for a plaintiff in garnishment, who has an unsecured pre-existing debt, cannot occupy the position of an innocent party. Curtis v. Hart (Tex. Civ. App.) 26 S.W.2d 420, 421. It is the statutory power of the Court of Civil Appeals to determine the sufficiency of evidence to support either a jury finding or a court's finding.
Supporting the forceful language hereinabove quoted numerous authorities could be cited. A few of them are the following: George D. Harter Bank of Canton, Ohio, v. Inglis, 6 F.2d 841; Curtis v. Hart, 26 S.W.2d 420; Western Shoe Co. v. Amarillo Nat. Bank, 127 Tex. 369, 94 S.W.2d 125; Swift v. Williams, et al., 68 Md. 236, 11 Atl. 835; Cady v. South Omaha Nat. Bank, 46 Neb. 756, 65 N.W. 906; Merchants Farmer's Bank Trust Co. v. Hammond Motors, et al., 164 La. 57, 113 So. 763; Brady v. American Nat. Bank of Oklahoma City, 120 Okla. 159, 250 Pac. 1006; Shotwell v. Sioux Falls Savings Bank, 34 S.D. 109. 147 N.W. 288. The opinion of the Supreme Court of Minnesota in Berg v. Union State Bank, 179 Minn. 191, 229 N.W. 102, contains a reference to other cases supporting the "equitable" rule which we adopt. To the extent that the opinion of this court in the early case of Boettcher v. Colorado Nat. Bank, 15 Colo. 16, 24 Pac. 582, is out of harmony with the views herein set forth, it is expressly overruled. The case of Sherberg v. First Nat. Bank of Englewood, 122 Colo. 407, 222 P.2d 782, was one in which recovery was had upon proof that the deposit there in question was a "special deposit," and by acce
The word "clerk" or "agent," after the name of a depositor in a bank, is discriptio personae and does not change the character of the deposit from that of an individual to that of a fiduciary character. Enzor v. State, 27 Ala. App. 60, 167 So. 336; Ferrell v. Ross, 200 Ala. 90, 75 So. 466; Jenkins v. Bramlett, 131 Ala. 597, 32 So. 575; Lowery v. Daniel, 98 Ala. 451, 13 So. 527; Curtis v. Hart, Tex.Civ.App., 26 S.W.2d 420, 421; Interstate Nat. Bank v. Claxton, 97 Tex. 569, 576, 80 S.W. 604, 65 L.R.A. 820, 104 Am.St.Rep. 885; Coleman v. Bank, 94 Tex. 605, 63 S.W. 867, 86 Am.St.Rep. 871; Bessemer Sav. Bank v. Anderson, 134 Ala. 343, 32 So. 716, 92 Am.St.Rep. 38; Boyle v. N.W. Nat. Bank, 125 Wis. 498, 103 N.W. 1123, 104 N.W. 917, 1 L.R.A., N.S., 1110, 110 Am.St.Rep. 844; Booker T. Washington B. I. Co. v. Roberts, 228 Ala. 206, 153 So. 409; First Nat. Bank v. Taylor, 142 Ala. 456, 37 So. 695; Murphree v. Mobile, 108 Ala. 663, 18 So. 740; Birmingham Nat. Bank v. Mayer, 104 Ala. 634, 16 So. 520; 28 C.J. 116. If the depositor may maintain an action against the bank in debt or indebitatus assumpsit to recover the money on deposit, it is subject to condemnation in garnishment proceedings. Sloss v. Glaze, 231 Ala. 234, 164 So. 51; Pettus v. Dudley Bar Co., 218 Ala. 163, 118 So. 153; First Nat. Bank v. Gains, 27 Ala. App. 191, 168 So. 702; Alexander v. Pollock, 72 Ala. 137; Jasper Land Co. v. Riddlesperger, 26 Ala. Ap
In such circumstances we think that equity would declare the proceeds of the sale so deposited and held by Ford in his own name impressed with a trust in favor of appellant against Ford and those holding no better rights than Ford. Texas Moline Plow Co. v. Kingman Texas Implement Co., 32 Tex. Civ. App. 343, 80 S.W. 1042; Curtis v. Hart, Tex. Civ. App. 26 S.W.2d 420; Clark Boice Lbr. Co. v. Commercial Nat'l Bank of Jefferson; Tex. Civ. App. 200 S.W. 197, writ refused; Scurry v. Quaker Oats Co., 201 Iowa 1171, 208 N.W. 860; Thex v. Shreve, 38 Wyo. 285, 267 P. 92. The sale having been made pursuant to the agreement, was with the consent of the mortgagee, whereby the purchaser took the property free of the lien, and against whom the mortgagee can have neither foreclosure nor damages for conversion.