create the relation of vendor and vendee between the assignor and the assignee. It may be conceded that the certificate of purchase did not of itself vest the holder with a legal title, and that the assignor was not, by the fact of assigning the certificate, technically a grantor. It was not necessary that the plaintiff should have been the holder of the legal title, or that she should have been nominally the grantor, in order that a lien in her favor might be declared. There would be force in the argument of appellant, if, in order that an equitable lien might have arisen out of the transaction, it was a requisite that the technical relation of vendor and vendee should have existed. It has been repeatedly held that the existence of this relation does not determine whether or not an equitable lien may be declared. Johns v. Sewell, 33 Ind. 1; Fleece v. O'Rear, 83 Ind. 200; Dwenger v. Branigan, supra; Carey v. Boyle, 53 Wis. 574; S. C. 11 N. W. Rep. 47; Jones v. Parker, 51 Wis. 218; S. C. 8 N. W. Rep. 124; Kaiser v. Lembeck, 55 Iowa, 244; S. C. 7 N. W. Rep. 519; Curtis v. Root, 20 Ill. 53.

In the case before us the appellee sold and conveyed her land, receiving, as security for part of the purchase price, a mortgage from the purchaser. The foreclosure of the mortgage and sale resulted in investing her with a certificate of purchase. The assignment of this certificate was the only possible method by which the right of the holder in the land could be transferred. This resulted, as it was evidently contemplated it would, in investing the appellant with all the title which the appellee had in the first instance to the land. The note stipulated on its face that it was given for part of the purchase price of real estate. This is persuasive of the understanding of the parties at the time. It was according to the fact, as events proved. It is the unpaid purchase money which creates the lien; and it is of no consequence to whom the money is due, so that it can be regarded in equity as purchase money. The lien results from the transactions between the parties, and is manifested by all the circumstances attending each particular case. Boyd v. Jackson, 82 Ind. 525; Nichols v. Glover, 41 Ind. 24.

Under the circumstances of this case, it was correctly declared that a lien arose. The judgment is therefore affirmed, with costs.

(103 Ind. 562)

MCLAIN. WALLACE, Receiver.*
Filed April 23, 1885.

1. BANKS AND BANKING-LIABILITY-SPECIAL AND GENERAL DEPOSITS. Upon a special deposit a bank is merely a bailee, and is bound according to the terms of the special deposit; but on a general deposit, without special agreement, the money becomes the property of the bank, and the depositor has no longer any claim on that money; his claim is on the bank for a like amount of money.1

8. SAME-INSOLVENCY-PAYMENT OF GENERAL DEPOSITORS.

Upon the insolvency of a bank, its general depositors must be paid pro rata. 8. SAME-DEPOSIT BY CLERK OF COURT.

The addition of the word "clerk" to the name of a general depositor does not make a deposit by the clerk of a county court a special one, nor does it change the liability of the bank.

18ee note at end of case,

Rehearing denied.

Appeal from Marion superior court.

J. P. Baker, for appellant.

B. Harrison, W. H. H. Miller, and J. B. Elam, for appellee.

BICKNELL, C. C. The appellee, as receiver of an insolvent banking company, had possession of its property. The appellant, who was the clerk of the courts of Marion county, filed his petition in said superior court alleging that, as said clerk, he held money in trust which he deposited with said banking company, and that when said company became insolvent it held $15,286.51 of said money, deposited by the appellant in the name of "Moses G. McLain, clerk," with the knowledge and consent of said company, and subject to the order of the appellant as such clerk, and subject to the order of said court. The petition prayed for an order directing the receiver to pay said sum of money to the appellant as clerk, or to pay it into court. The appellee demurred to the petition for want of facts sufficient. The demurrer was sustained, and judgment was rendered thereon against the appellant. He appealed to the superior court in general term; there the judgment was affirmed, and he appealed to this court.

The question is, what are the rights of a bank depositor when the bank becomes insolvent? Deposits in bank are either general or special. Upon a special deposit the bank is merely a bailee, and is bound according to the terms of the special deposit; but on a general deposit, without special agreement, the money becomes the property of the bank, and the depositor has no longer any claim on that money; his claim is on the bank for a like amount of money. Coffin v. Anderson, 4 Blackf. 395; Mc Ewen v. Davis, 39 Ind. 109. Upon the insolvency of a bank its general depositors must be paid pro rata. The rule that a trustee may follow trust property as long as it can be traced is not applicable to such a case. The addition of the word "clerk" to the name of a general depositor does not make the deposit a special one, nor does it change the liability of the bank.

We need not decide what would be the rule as to trust funds specially deposited and actually on hand and capable of being traced.

The judgment of the court below ought to be affirmed.

PER CURIAM. It is therefore ordered, on the foregoing opinion, that the judgment of the court below be, and the same is hereby, in all things affirmed, at the costs of the appellant.

NOTE.

Cash deposited with a bank as a general deposit ceases to be the property of the depositor, and becomes the property of the bank, creating at once the relationship of debtor and creditor. Balbach v. Frelinghuysen, 15 Fed. Rep. 675.

And so, where one leaves money with another for safe-keeping, with the understanding, not that the identical money shall be returned to him, but a like sum, it is not a bailment or special deposit, but a general deposit in the nature of a loan. Shoemaker v. Hinze, (Wis.) 10 N. W. Rep. 86.

END OF VOLUME 5.