44 S.E. 601 | N.C. | 1903
From a judgment denying plaintiffs a prior lien on the assets (772) of the defendant, the plaintiffs appealed.
Plaintiffs, relying upon the doctrine announced by this Court in Hancock v. Wooten,
The assignment was made on 12 October, 1897, and recorded at 9:30 o'clock a.m., on the same day. The summons in the action of Fisher and others (who were named) "and all other creditors of the Western Carolina Bank who may choose to come in and make themselves parties to this action" against the Western Carolina Bank, Lewis Maddux, and L. P. McLeod, was issued and received by the sheriff on the same (774) day and served on 16 October, 1897. The complaint was filed 13 October, 1897, at 11:50 a. m. The complaint sets out the material allegations in regard to the incorporation, etc., and the indebtedness of the bank to the plaintiffs. The 19th allegation avers "That, as the plaintiffs are informed and believe, said deed of trust or voluntary assignment is fraudulent and void in law as to these plaintiffs, and was executed by defendant with intent to hinder, delay, and defraud the plaintiffs and other creditors of the defendant bank." They demand judgment that they recover the amounts of their debts; that a receiver be appointed; that the deed of trust be declared void, etc. On the same day, 12 October, the Battery Park Bank in its own behalf and all other creditors, issued summons against the Western Carolina Bank. This summons was served 12 October, 1897. On the same day the plaintiff Battery Park Bank, by its cashier, filed an affidavit setting forth the indebtedness of the defendant bank, its insolvency, etc., and stating that it was entitled to have a receiver appointed pursuant to section 668 of The Code. On 13 October, 1897, at 11:30 p. m., Norwood, J., made an order in said case appointing temporary receivers. Thereafter permanent receivers were appointed. The complaint in the action brought by the Battery Park Bank was filed 25 October, 1897, alleging the insolvency of the bank and its indebtedness to the plaintiff and demanding judgment for its debt and such other and further relief in the premises *545 as it may be entitled to. In this action an order was made at the return term consolidating all of the actions brought against the defendant bank without prejudice to the rights of any of said suitors to establish a prior lien on the assets of the defendant bank in the hands of said receivers, if by law they have acquired such preference by such independent suits or by claimants of the bank having become parties thereto. The defendant bank filed its answer, denying any fraudulent purpose or intent in the execution of the deed of (775) assignment. The cause was brought to trial at the September Term of court. The verdict of the jury fixed the indebtedness of the several plaintiffs and found that the deed of assignment was made with intent to hinder, delay, and defraud plaintiffs and other creditors of the defendant bank.
The general principle governing the rights of creditors in the distribution of assets, set forth in Hancock v. Wooten,
The judgment of the court below is
Affirmed.
Cited: Withrell v. Murphy,