72 N.C. 621 | N.C. | 1875
We are of the opinion that none of the causes of demurrer are sufficient, because,
1. It is a creditor's bill and all the creditors are, or may come in and be parties, and share the recovery; *625
2. The Bank of Lexington represents its stockholders who are secondarily liable;
3. For the same reason as in the second above;
4. The several causes are all connected and can be settled in the same action;
5. The demand was made not of the Branch Bank of Graham, it is true, for that had gone out of existence, but at and of the Bank of Graham, which had undertaken to redeem them; and a reasonable time had elapsed.
Upon overruling the demurrer and remanding the cause, we suppose the defendants will answer; and then the rights and liabilities of the parties can be better determined than they can now upon the demurrer. It would seem now, however, that the liability of the defendants under their covenant with the Bank of Lexington to redeem the bills or to indemnify the Bank of Lexington if the Bank of Lexington should redeem them. It is equally plain that the Bank of Lexington is obliged to redeem its bills. But are the defendants bound under their covenant not only to the Bank of Lexington, but to the plaintiffs? It would seem that they are. It is a familiar principle of equity that the bill holders are entitled to all the securities which have been provided for their redemption, the Bank of Lexington and all its assets. But the Bank of Lexington is insolvent. All its assets which went into the Bank of Graham are lost. The Bank of Graham is insolvent; and so the only thing left is the defendants' covenant. And in regard to that, it would seem that the plaintiffs have an equity to be subrogated to the rights of the Bank of Lexington. What then are the rights of the Bank of Lexington? Evidently to recover of the defendants such amount as it has paid out in redeeming the bills which the defendants covenanted to redeem. The face value of the bills if it paid the face value; otherwise, the sum actually paid. If the plaintiffs take the place of the Lexington Bank, then that is the measure of their rights, to be reimbursed the amount they paid out for the bills. That would probably be the measure if they received the bills as currency; much *626
more would it be so, if they were bought as a marketable commodity, as all State bank bills have been since the war. Carter v. Jones, 5 Ired. Eq. 196;York v. Landis,
There is error. Cause remanded.
PER CURIAM. Judgment reversed and demurrer overruled.
