Restitution restricted to traceable, unlawfully mingled fund.

- Where a bank, with notice that a fund is the sinking fund of a municipality, illegally receives such fund from the municipality in violation of § 36-38-1, and mingles the fund with the general cash assets of the bank, and shortly thereafter suspends operation and its business is taken in charge by the superintendent of banks (now commissioner of banking and finance) as an insolvent institution, the municipality may trace the trust fund and have restitution from the mingled fund, and any particular property in which the mingled fund may have been invested; but not in other funds of the bank. Town of Douglasville v. Mobley, 169 Ga. 53, 149 S.E. 575 (1929).

Procedure to reach trustee's interest of mingled fund.

- Where a trustee has so mingled the trust funds with his own estate that they cannot be distinguished, a cestui que trust may bring a complaint to reach the trustee's interest. Lathrop & Co. v. McBurney & Hollingsworth, 71 Ga. 815 (1883); Evans v. Pennington, 50 Ga. App. 146, 177 S.E. 357 (1934).

Effect of failure to distinguish confused funds.

- Where an administrator sold as a unit and for a lump sum four parcels of land as to only two of which he has obtained an order from the court of ordinary (now probate court), the administrator in thus causing a confusion of funds brings upon himself and his security the burden of showing what proportion of the funds were derived from the sale of the other two parcels, in order to escape liability therefor; and, upon a failure to carry such burden they were held liable for the entire sum. American Sur. Co. v. Pettie, 178 Ga. 26, 171 S.E. 916 (1933).

And separation and distinguishment required when property sold and applied to creditor's indebtedness.

- A factor with whom property has been deposited who, after having made advancements to the owner upon the property, sells a portion of the property during the owner's lifetime and applies the proceeds thereof upon the indebtedness, and sells the remainder of the property after the death of the owner, is entitled to the proceeds of the property sold before the death of the owner but, by reason of a claim of the widow and minor children of the owner to a year's support, is not entitled to the proceeds of the property sold after the death of the owner, and before he can assert his claim to the proceeds of the property to which he is entitled, he must separate and distinguish them from the proceeds of the property sold after the death of the owner. Philpot v. Ramsey & Hogan, 47 Ga. App. 635, 171 S.E. 204 (1933).

Allegations sufficient to support cause of action for accounting.

- Petition alleging that the defendant, as agent, had exclusive control of the assets and handling of all of the affairs of two estates, that he used petitioner's individual money in the estate affairs and for his own use, that he wrongfully appropriated to his own use the estate funds and funds of petitioner, that he sold property, and never turned over the proceeds thereof, that he wrote checks on petitioner's personal account and used the proceeds for himself, that he kept all books and records pertaining to such transactions, and denied petitioner access to them, was sufficient to state a cause of action for accounting as against a general demurrer (now motion to dismiss). Harrison v. Harrison, 214 Ga. 393, 105 S.E.2d 214 (1958).

Proof that expenses for repairs are authorized is necessary where a vendor retakes and resells property as agent of the purchaser, when he sues for the deficiency in proceeds. Hargett v. Muscogee Bank, 32 Ga. App. 701, 124 S.E. 541 (1924).

Cited in Liberty County Land & Lumber Co. v. Barnes, 77 Ga. 748, 1 S.E. 378 (1887); Claflin & Co. v. Continental Jersey Works, 85 Ga. 27, 11 S.E. 721 (1890); Finance Co. v. Lowery, 36 Ga. App. 337, 136 S.E. 475 (1927); Johnson v. King Lumber Co., 39 Ga. App. 280, 147 S.E. 142 (1929); Davis v. Wright, 194 Ga. 1, 21 S.E.2d 88 (1942); Southland Timber Corp. v. State Bank & Trust Co., 220 Ga. 307, 138 S.E.2d 585 (1964).

ALR.

- Law regarding confusion of goods as applied to live stock, 10 A.L.R. 765.

Right to protection against simulation of physical appearance or arrangement of place of business or vehicle, 28 A.L.R. 114.

Necessity and sufficiency of identification of goods sold as condition of avoidance of debtor's exemption against claim for purchase price, 150 A.L.R. 1329.

Confusion of goods by accident, mistake, or act of a third person, 39 A.L.R.2d 555.