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Paset v. Old Orchard Bk. & Trust Co.





APPEAL from the Circuit Court of Cook County; the Hon. IRWIN COHEN, Judge, presiding. MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

On May 8, 1974, the plaintiff, Bernice Paset, a safety deposit box subscriber at the defendant Old Orchard Bank (the bank), found $6,325 in currency on the seat of a chair in an examination booth in the safety deposit vault. The chair was partially under a table. The plaintiff notified officers of the bank and turned the money over to them. She then was told by bank officials that the bank would try to locate the owner, and that she could have the money if the owner was not located within 1 year.

The bank wrote to everyone who had been in the safety deposit vault area either on the day of, or on the day preceding, the discovery, stating that some property had been found and inviting the customers to describe any property they might have lost. No one reported the loss of currency, and the money remained unclaimed a year after it had been found. However, when the plaintiff requested the money, the bank refused to deliver it to her, explaining that it was obligated to hold the currency for the owner.

The safety deposit vault area of the bank was located on a lower floor of the bank. This area was separated from a lobby by a gate, and, according to an affidavit filed by the bank, entrance to the safety deposit vault area was restricted to bank employees and customers maintaining safety deposit boxes in the vault. The affidavit stated that no customer could enter this vault without the consent of a bank guard or employee stationed at the gate, and that customers were allowed to enter only after their signatures were verified. When a customer entered, a bank employee would accompany the customer to the safety deposit vault to obtain the box and then escort him to one of the 16 examination booths maintained in the area.

The plaintiff sought a declaratory judgment that the Illinois estray statute (Ill. Rev. Stat. 1975, ch. 50, par. 27 et seq.) was applicable to her discovery and granted her ownership of the $6,325. The circuit court judge, however, found that the money was "deemed mislaid," and concluded that despite the plaintiff's compliance with the requirements of the estray statute, that statute was not applicable. His order provided that the court was not determining ultimate ownership of the money, that if necessary the plaintiff's right to ownership could be determined in a separate action at a later date, and that the bank should continue to hold the money as bailee or trustee for the true owner. The plaintiff, appealing from this order, prays that this court enter a judgment declaring her the owner of the money.

The bank's position is that the estray statute is not applicable because the money was not lost in the sense the word "lost" is used in that statute. The bank contends that, under the common law, the money was mislaid by its owner rather than lost, and that the estray statute does not apply to mislaid property. In the alternative, the bank argues that the money was discovered not in a public place, but in a private area with access restricted to safety deposit box subscribers. The bank claims, therefore, that the money always was in its constructive possession or custody, either as owner of the premises or as bailee for an unknown and unidentified safety deposit box subscriber, and that property in someone's constructive possession or custody cannot be lost. As against the plaintiff, the bank claims to have the superior right to hold the money indefinitely, and in fact is required to do so until the true owner puts in his appearance.

This appeal, then, requires a determination of whether a finder of cash in an examining booth in a safety deposit vault may be a keeper under the Illinois estray statute and an analysis of the extent to which the common law concepts of lost and mislaid property apply to the statute.

The estray statute provides in sections 27 and 28:

"If any person or persons find any lost goods, money, bank notes, or other choses in action, of any description whatever, such person or persons shall inform the owner thereof, if known, * * * If the owner is unknown and if such property found is of the value of $15 or upwards, the finder or finders shall, within 5 days after such finding as aforesaid, appear before some circuit judge residing in the county, and make affidavit of the description thereof, the time and place when and where the same was found, that no alteration has been made in the appearance thereof since the finding of the same, that the owner thereof is unknown to him and that he has not secreted, withheld or disposed of any part thereof. The judge shall enter an order stating the value of the property found as near as he can ascertain. A certified copy of such order and the affidavit of the finder shall, within 10 days after the order has been entered, be transmitted to the county clerk to be recorded in his estray book, and filed in his office." Ill. Rev. Stat. 1975, ch. 50, par. 27.

"If the value thereof exceeds the sum of $15, the county clerk, within 20 days after receiving the certified copy of the judge's order shall cause an advertisement to be set up on the court house door, and in 3 other of the most public places in the county, and also a notice thereof to be published for 3 weeks successively in some public newspaper printed in this state and if the owner of such goods, money, bank notes, or other choses in action does not appear and claim the same * * * within one year after the advertisement thereof as aforesaid, the ownership of such property shall vest in the finder." (Ill. Rev. Stat. 1975, ch. 50, par. 28.)

The Illinois estray statute's principal purposes are to encourage and facilitate the return of property to the true owner, and then to reward a finder for his honesty if the property remains unclaimed. The statute provides an incentive for finders to report their discoveries by making it possible for them, after the passage of the requisite time, to acquire legal title to the property they have found. *fn1 (See Comment, Lost, Mislaid, and Abandoned Property, 8 Fordham L. Rev. 222, 234-235 (1939).) By directing the county clerk to publicize and advertise the property, the statute further enhances the opportunity of the owner to recover what he has lost.

• 1, 2 Traditionally, the common law has treated lost and mislaid property differently for the purposes of determining ownership of property someone has found. Mislaid property is that which is intentionally put in a certain place and later forgotten; at common law a finder acquires no rights to mislaid property. The element of intentional deposit present in the case of mislaid property is absent in the case of lost property, for property is deemed lost when it is unintentionally separated from the dominion of its owner. The general rule is that the finder is entitled to possession of lost property against everyone except the true owner. We are not concerned in this case with abandoned property where the owner, intending to relinquish all rights to his property, leaves it free to be appropriated by any other person. Although at common law the finder is entitled to keep abandoned property, the plaintiff has not taken the position that the money here was abandoned. Jackson v. Steinberg (1948), 186 Ore. 129, 200 P.2d 376, 377; 1 Am. Jr. 2d Abandoned, Lost, and Unclaimed Property §§ 1, 2 (1962).

As is usual in cases involving a determination of whether property is lost or mislaid, this court is not here assisted by direct evidence, for, obviously, the true owner is not available to state what his intent was. Also, because all the evidence here has been presented by affidavit or stipulation, this court is in as advantageous a position as the trial judge to determine whether the money was lost or mislaid. Our conclusion is that the estray statute should be applied, and ownership of the money vested in the plaintiff finder.

Thus, we do not accept the bank's initial argument that the money was mislaid rather than lost. It is complete speculation to infer, as the bank urges, that the money was deliberately placed by its owner on the chair located partially under a table in the examining booth, and then forgotten. If the money was intentionally placed on the chair by someone who forgot where he left it, the bank's notice to safety deposit box subscribers should have alerted the owner. The failure of an owner to appear to claim the money in the interval since its discovery is affirmative evidence that the property was not mislaid. Toledo Trust Co. v. Simmons (1935), 52 Ohio App. 373, 3 N.E.2d 661; Burnley v. First National Bank (1953), 87 Pa. D. & C. 433.

• 3 Because the evidence, though ambiguous, tends to indicate that the money probably was not mislaid, and because neither party contends that the money was abandoned, we conclude that the ambiguity should, as a matter of public policy, be resolved in favor of the presumption that the money was lost. This conclusion is in harmony with the above mentioned purposes of the estray statute, for it construes the statute liberally rather than technically, with the result that the statute is brought into play rather than rejected. Such an application of the statute better effectuates the legislature's goal of restoring property to a true owner; it provides incentive for a finder to report his discovery by rewarding him if the true owner does not appear within the statutorily determined time limit. ...

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