117 S.E. 809 | S.C. | 1923
Lead Opinion
The opinion of the Court was delivered by
The following facts are stated in the record:
“His Honor, Judge Bowman, upon the petition of B. W. Miley as Receiver of the Farmers’ & Merchants’ Bank, of Ehrhardt, S. C, enjoined the National Eoan & Exchange*61 Bank of Columbia from selling certain notes. The National Eoan & Exchange Bank of Columbia moved before his Honor, Judge Bowman, at his Chambers at Orange-burg, to* vacate the injunction. This motion was refused, by an order dated December 9, 1922, whereupon the National Eoan & Exchange Bank of Columbia appeals.
“The Farmers’ & Merchants’ Bank, of Ehrhardt, S. C. (referred to hereafter as the Ehrhardt bank), borrowed from the National Eoan & Exchange Bank of Columbia (referred to hereafter as the Columbia bank), the sum of $10,000.00, and gave its note therefor. In order to secure this note, the Ehrhardt bank pledged to the Columbia bank various collateral securities, including three notes, aggregating about $4,950.00, executed by L. M. Hiers & Son to the Ehrhardt bank.
“The note of the Ehrhardt bank to the Columbia bank was dated February 2, 1921, became due 30 days after date, and contained the following provisions: ‘The said bank is hereby authorized, upon the nonpayment of any of the liabilities above mentioned when they become due, to sell, assign and deliver the whole of the said securities, or any part thereof, * * * at public or private sale, at the option of the said bank, without either advértisement or notice, which are hereby expressly waived. If such securities or property are sold at public sale, said bank may purchase the whole or any part thereof, free from any right of redemption on the part of 'the undersigned which is hereby waived and released.’
“After the execution of the said note, the doors of the Ehrhardt bank were closed on account of insolvency, and Receivers were appointed. The present Receiver is B. W. Miley.
“The note of the Ehrhardt bank to the Columbia bank was not paid at maturity, and a larger amount is now due thereon than is due on the three Hiers notes. On June 30, 1921, the Columbia bank entered suit against E. M.*62 Hiers & Son on their three notes, and answers were put in denying liability. This case has been marked ended on the calendar.
“On November 11, 1922, the Columbia bank gave notice that it would sell the three Hiers notes at public sale, the following being a copy of the notice which was published at least two weeks before said proposed sale in The State, a newspaper published at Columbia, and was personally served upon the Receiver of the Ehrhardt bank and upon the attorney for L. M. Hiers & Son, on November 11, 1922.”
The petition was verified, but no affidavits were introduced. Even, however, if the allegations thereof had been sustained by affidavits, it did not contain facts sufficient to entitle the petitioner to relief. The grounds upon which the petitioner relies for an injunction were bad faith and inadequacy of remedy at law. The facts upon which- the petitioner relied to show bad faith were in accordance with the rights of the petitioner under the law; and the facts set forth for the purpose of showing inadequacy of remedy at law were insufficient.
The order refusing to set aside the order of injunction Is, therefore, reversed.
Lead Opinion
June 11, 1923. The opinion of the Court was delivered by The following facts are stated in the record:
"His Honor, Judge Bowman, upon the petition of B. W. Miley as Receiver of the Farmers' Merchants' Bank, of Ehrhardt, S.C. enjoined the National Loan Exchange *61 Bank of Columbia from selling certain notes. The National Loan Exchange Bank of Columbia moved before his Honor, Judge Bowman, at his Chambers at Orangeburg, to vacate the injunction. This motion was refused, by an order dated December 9, 1922, whereupon the National Loan Exchange Bank of Columbia appeals.
"The Farmers' Merchants' Bank, of Ehrhardt, S.C. (referred to hereafter as the Ehrhardt bank), borrowed from the National Loan Exchange Bank of Columbia (referred to hereafter as the Columbia bank), the sum of $10,000.00, and gave its note therefor. In order to secure this note, the Ehrhardt bank pledged to the Columbia bank various collateral securities, including three notes, aggregating about $4,950.00, executed by L.M. Hiers Son to the Ehrhardt bank.
"The note of the Ehrhardt bank to the Columbia bank was dated February 2, 1921, became due 30 days after date, and contained the following provisions: `The said bank is hereby authorized, upon the nonpayment of any of the liabilities above mentioned when they become due, to sell, assign and deliver the whole of the said securities, or any part thereof, * * * at public or private sale, at the option of the said bank, without either advertisement or notice, which are hereby expressly waived. If such securities or property are sold at public sale, said bank may purchase the whole or any part thereof, free from any right of redemption on the part of the undersigned which is hereby waived and released.'
"After the execution of the said note, the doors of the Ehrhardt bank were closed on account of insolvency, and Receivers were appointed. The present Receiver is B. W. Miley.
"The note of the Ehrhardt bank to the Columbia bank was not paid at maturity, and a larger amount is now due thereon than is due on the three Hiers notes. On June 30, 1921, the Columbia bank entered suit against L.M. *62 Hiers Son on their three notes, and answers were put in denying liability. This case has been marked ended on the calendar.
"On November 11, 1922, the Columbia bank gave notice that it would sell the three Hiers notes at public sale, the following being a copy of the notice which was published at least two weeks before said proposed sale in The State, a newspaper published at Columbia, and was personally served upon the Receiver of the Ehrhardt bank and upon the attorney for L.M. Hiers Son, on November 11, 1922."
The petition was verified, but no affidavits were introduced. Even, however, if the allegations thereof had been sustained by affidavits, it did not contain facts sufficient to entitle the petitioner to relief. The grounds upon which the petitioner relies for an injunction were bad faith and inadequacy of remedy at law. The facts upon which the petitioner relied to show bad faith were in accordance with the rights of the petitioner under the law; and the facts set forth for the purpose of showing inadequacy of remedy at law were insufficient.
The order refusing to set aside the order of injunction is, therefore, reversed.
MR. JUSTICE COTHRAN: I concur upon the grounds: 1. The appointment of a Receiver of the pledgor does not affect the pledgee's power of sale under the instrument of hypothecation. 2. That if neither the Receiver nor the creditors of the pledgor see fit to protect themselves at an open, fair, and advertised sale, they have no cause to complain of the exercise by the pledgee of a legal right, regardless of his motive or of his subsequent disposition of the purchased pledge. 3. That if the Receiver had any remedy at all, under the facts alleged in his petition, he should have proceeded, not in the cause which was ended, but by original action for injunction. *63
Concurrence Opinion
I concur upon the grounds: 1. The appointment of a Receiver of the pledgor does not affect the pledgee’s power of sale under the instrument of hypothecation. 2. That if neither the Receiver nor the creditors of the pledgor see fit to protect themselves at an open, fair, and advertised sale, they have no cause to complain of the exercise by the pledgee of a legal right, regardless of his motive or of his subsequent disposition ■of the purchased pledge. 3. That if the Receiver had -any remedy at all, under the facts alleged in his petition, he should have proceeded, not in the cause which was ended, but by'original action for injunction. •
