142 S.E. 786 | N.C. | 1928
This action involves the title to certain notes described in the complaint. These notes are now held by defendants, receivers of the Bank of Hamlet. The controversy is primarily between the defendants, T. M. Rose and others, and the intervenors. Each claims under an assignment of said notes, made by the Bank of Hamlet. Prior to said assignments, the Bank of Hamlet owned the said notes and held the same as part of its assets.
On 8 September, 1925, the said notes were assigned by the Bank of Hamlet to defendant, T. M. Rose, to indemnify the said Rose and others, from loss on a bond executed by the Bank of Hamlet, as principal, and the said Rose and others as sureties, to the plaintiff in this action. The said bond was conditioned for the payment, on demand, by the Bank of Hamlet to the plaintiff, as obligee, of a sum of money deposited *546 by the plaintiff with said bank. There has been a breach of said bond by the Bank of Hamlet, which is now insolvent.
The plaintiff alleges that as obligee in said bond, it has an equity, by reason of the assignment of said notes for the protection of the sureties, to have the proceeds of said notes, when collected, applied in discharge of the liability of the principal on said bond to plaintiff. It demands judgment in this action on the bond, and prays that the receivers of the Bank of Hamlet be ordered and directed to collect said notes, and to apply the proceeds of such collection to the satisfaction of its judgment.
The intervenors allege that the assignment of said notes by the Bank of Hamlet to defendant, T. M. Rose, is void, for that said assignment was fraudulent; they allege that they are the owners of said notes under a valid assignment made to them by the Bank of Hamlet, prior to the date of the assignment under which plaintiff and defendants, T. M. Rose and others, claim; that the assignment to them was made to secure certain certificates of deposit issued by the Bank of Hamlet and now owned by them.
From judgment overruling demurrers filed by each of them to the cross-complaint of the intervenors, plaintiff, and defendant, T. M. Rose, appealed to the Supreme Court.
In Trust Co. v. Rose,
This action was begun on 27 June, 1927. Plaintiff demanded judgment on the bond, and prayed that the receivers of the Bank of Hamlet be ordered and directed to pay to plaintiff, as obligee in the bond, all sums collected by the said receivers on the notes held by them in discharge of its judgment.
On 23 July, 1927, N. A. Berry and his wife, Mary H. Berry, upon their motion, were made parties to the action, and were allowed to intervene therein, and set up their claim to the notes described in the complaint. On the same day they filed an answer to the complaint and a petition, in the nature of a cross-complaint against the plaintiffs, the receivers of the Bank of Hamlet, and the defendants, T. M. Rose and others. Plaintiffs and defendant, T. M. Rose, each filed a demurrer to the cross-complaint of the intervenors for that the allegations contained therein do not state a cause of action. Upon the hearing, these demurrers were overruled. From the judgment overruling their demurrers, plaintiff and defendant, T. M. Rose, appealed to this Court.
The questions presented for decision upon this appeal, are, first, whether the assignment under which the intervenors claim title to the notes described in the complaint, upon the facts alleged in their cross-complaint, and admitted by the demurrers, is valid, and second, if so, whether the title acquired by the intervenors in and to said notes, under said assignment, is superior to the title acquired by defendants, T. M. Rose and others, under the subsequent assignment of said notes, and also to the equity alleged by plaintiff in this action, founded upon said assignment.
Both these questions must be answered in the affirmative — the first upon the authority of Trust Co. v. Rose,
As the allegations of the cross-complaint will doubtless be denied in the answers thereto, which appellants are authorized to file, by the judgment overruling their demurrers, we refrain from passing upon questions discussed in the briefs, filed upon this appeal. The pertinency of these questions depends upon the facts as they may be determined by the verdict of the jury. There is no error in the judgment overruling the demurrers, and allowing appellants time to answer as they may be advised. The judgment is
Affirmed.