Bank v. Western Carolina Bank

• Decision Date: 22 December 1900
• Citation: 127 N.C. 432,37 S.E. 461
• Court: North Carolina Supreme Court
• Parties: BATTERY PARK BANK. v. WESTERN CAROLINA BANK.

127 N.C. 432

37 S.E. 461

BATTERY PARK BANK.

v.WESTERN CAROLINA BANK.

Supreme Court of North Carolina.

Dec. 22, 1900.

CORPORATIONS — ASSIGNMENT FOR BENEFIT OF CREDITORS—VALIDITY—CREDITORS' SUIT —LIEN—RECEIVERS — TITLE —APPOINTMENT BY CIRCUIT JUDGE—RIGHT TO APPEAL.

1. Code, § 085, provides that "any conveyance of its property, whether absolutely or upon condition, in trust or by way of mortgage, executed by any corporation, shall be void and of no effect as to the creditors of said corporation existing prior to or at the time of the execution of said deed, " provided such creditors shall, begin proceedings to enforce their claims against it within 60 days after registration thereof. Field, by virtue of such section, that a deed of assignment by a corporation for the benefit of all its creditors was void as to prior existing creditors who immediately thereafter began actions in justice court to enforce their claims against it.

2. A judge of a criminal court has no power to appoint a receiver in a proceeding by creditors' bill to wind up the affairs of a corporation.

3. The title of a receiver relates only to the time of his appointment, and valid liens against the property of the estate existing at the time thereof are not devested thereby.

4. The commencement of an action in the nature of a creditors' bill creates no lien on the realty or tangible personal property, which passes to the receiver therein subject to the lien of the levy of an attachment or execution made prior to his appointment.

5. In a contest between two sets of creditors as to the distribution of a fund, the receiver thereof is not justified in appealing from the judgment.

Appeal from superior court, Buncombe county; Allen, Judge.

Action by the Battery Park Bank against the Western Carolina Bank. A receiver was appointed for defendant, which was insolvent, and from a judgment as to the distribution of funds in his hands he appeals. Affirmed.

Merrimon & Merrimon, for appellant.

Geo. A. Shuford, J. C. Martin, and Chas. A. Moore, for petitioning creditors.

CLARK, J. On October 11, 1897, the defendant bank became insolvent, closed its doors, and executed an assignment for the benefit of all its creditors. On the morning of October 12th, the plaintiffs sued out a summons in a creditors' bill to wind up its affairs, and filed an affidavit for the appointment of a receiver. On said October 12th a temporary receiver was appointed by Judge Ewart, of the criminal court of Buncombe, etc., who was by him made permanent receiver on the next day. At night on October 13th the same person was appointed a temporary receiver by Judge Norwood, the judge of the superior court, holding the courts of that district. On October 12th and 13th, after the summons in this creditors' bill was sued out, and after the order of Judge Ewart appointing a temporary receiver, each of the petitioning creditors sued the defendant bank before a justice of the peace, obtained judgments aggregating $5,000, and had transcripts docketed in the superior court of Buncombe before any action was taken by Judge Norwood upon the application for appointment of a receiver. These judgment creditors, at March term, 1898, filed petitions in this cause, claiming liens on the real estate of defendant bank in Buncombe county superior to the rights of the general creditors. They have not become parties to this action otherwise than by filing said petition asking for payment in full of their...