Merch.S' Nat. Bank v. Flippen

• Decision Date: 20 March 1912
• Citation: Merch.S' Nat. Bank v. Flippen, 74 S.E. 100, 158 N.C. 334 (N.C. 1912)
• Parties: MERCHANTS' NAT. BANK. v. FLIPPEN et al.
• Court: North Carolina Supreme Court

74 S.E. 100

(158 N.C. 334)

MERCHANTS' NAT. BANK.

v.FLIPPEN et al.

Supreme Court of North Carolina.

March 20, 1912.

Appeal from Superior Court, Wake County; Webb, Judge.

Action by the Merchants' National Bank against S. T. Flippen and O. E. Snow, receiver. Judgment for plaintiff and defendant Snow, receiver, appeals. Affirmed.

Watson, Buxton & Watson, for appellant Snow.

Aycock & Winston, for appellee Merchants' Nat. Bank.

T. W. Folger and Walter Clark, Jr., for appellee Flippen.

BROWN, J. The Pilot Bank & Trust Company failed in business, and defendant Snow was appointed receiver to settle up its affairs. At date of receivership, the insolvent corporation owed the Merchants' National Bank of Raleigh, N. C, $4,227.51. That bank held certain notes as collateral, among others, that of the defendant Flippen. From this collateral the said bank had received certain sums since the date of the receivership.

The sole question presented is whether in cases of this nature distribution by the receiver should be on the basis of the entire indebtedness originally—i. e., $4,227.51—or on the basis of the amount remaining unpaid at the time distribution is ordered. In other words, whether the receiver, being ordered to pay 50 per cent. of the indebtedness, should pay on the basis of the entire amount which originally was due, or only 50 per cent. of the amount still remaining due. It is useless to discuss the many cases in which this matter has been passed on by the courts of this country. Suffice it to say that the overwhelming weight of authority favors the position that dividends are declared upon the basis of the original indebtedness exist-ing at the time of the receivership. When such dividends, added to any sums collected by the creditor from collateral, shall have paid the debt in full, then dividends of course must cease, and the uncollected collateral delivered to the receiver. By following this rule no injustice is done to the other creditors of the insolvent, and a certain and unchanging sum is given upon which dividends are to be declared. This is the view taken by this court heretofore, and directly decided in the cases of Winston v. Biggs, 117 N. C. 206, 23 S. E. 316; Brown v. Bank, 79 N. C. 244. In Merrill v. Bank, 173 U. S. 131, 19 Sup. Ct. 360, 43 L. Ed. 640, the Supreme Court of the United States holds that "a secured creditor of an insolvent bank may prove and receive dividends upon the face of his claim as it stood at the time of the declaration of insolvency, without crediting either his collaterals or collections made therefrom, after such declaration, subject always to the proviso that dividends must cease when, from them and from collaterals realized, the claim has been paid in full." The above, we think, is a succinct and correct synopsis of the great weight of authority. The following courts hold similar views: England (Palmer v. Culverwell, 85 L. T. N. S. 758); Colorado. (Hendrie v. Graham, 14 Colo. App. 13, 59 Pac. 219); Illinois (In re Bates, 118 Ill. 524, 9 N. E. 257, 59 Am. Rep. 383; Furness v. Bank, 147 Ill. 570, 35 N. B. 624);...