Bank of Roxie v. Lampton

61 So. 452 | Miss. | 1913

Smith, C. J.,

delivered the opinion of the court.

Counsel for appellee do not, and in fact could not suecessfully, contend that Caston was authorized to withdraw the money deposited by appellant in the Pike County Bank & Trust Company and apply it to his own benefit, but seek to uphold the decree of the court below on the ground that it found as a fact “that a fraud had been perpetrated by both parties, one upon the other,” and therefore neither of them was entitled to relief. In so finding, the court below erred; for it is manifest from the agreed statement of facts that the appellant was wholly without fault in the matter, and that the Pike Couny Bank & Trust Company was simply the victim of Gaston’s fraudulent conduct.

The decree of the court below is reversed. Decree will be entered here for appellant for the sum of four thous- and nine hundred ninety-seven dollars and eighty-two cents, with interest thereon from the 31st day of March, 1908, in accordance with the prayer of its bill, dismissing appellee’s cross-bill, and taxing it with the costs in this, and the lower court.

OPINION ON SUGGESTION 0E ERROR.

Smith, C. J.,

delivered the opinion of the court.

At a former day of this term the decree of the court below in this case was reversed, and decree was entered here in favor of appellant for the sum sued for, together with interest thereon at the rate of six per cent, per annum from March 3,1908. Appellees now request that this decree be corrected, so as to eliminate therefrom this item of interest.

Appellees are the assignees of the Pike County Bank & Trust Company, an insolvent corporation, the liabilities of which exceed its assets, and are administering its affairs in the court below. Under the direction of the court below, they have heretofore declined to pay interest on any indebtedness due by this bank after the date of its assignment to them for the benefit of creditors.; all dividends which have been paid to creditors being apportioned upon the principal of the debt and interest thereon prior to the date of this assignment. Three dividends have been paid to the other creditors — one for twenty-five per cent.j on December 8, 1909; one for fifteen per cent., on August 26, 1910; and one for twenty per cent., on January 3,1912. From this it appears that, if appellant is to be allowed interest on its claim from the date of the assignment, as was done in the decree hereinbefore rendered, it will obtain a preference in the matter of interest over the other creditors of the bank. It is not entitled, therefore, to the whole of this interest • but it is entitled to be put upon an equality with the other creditors, and is therefore entitled to interest on the dividends declared, and which would have been received by it, had the receivers not contested its claim, from the dates they were declared and ought to have been paid. In re Claim of the Ilion National Bank, 59 Hun, 307, 12 N. Y. Supp. 829; Armstrong v. American Exchange, etc., Bank, 133 U. S. 433, 10 Sup. Ct. 450, 33 L. Ed. 747.

The motion will be sustained to the extent herein indicated and the decree corrected accordingly.

Suggestion of error sustained.