Merrimon v. City of Asheville

201 N.C. 181

Opinion

BeogdeN, J.

This suit was instituted to- recover certain collateral which the Central Bank and Trust Company had hypothecated with the defendant, city of Asheville, for the purpose of securing the deposit of the city in said bank. The cause of action rests upon the theory that the officials of the bank had no right to hypothecate the assets thereof for such purpose, and furthermore, that such hypothecation enabled the city to secure an unlawful and fraudulent preference. It. is not alleged that demand had been made upon the Corporation Commission to recover the assets of the bank, and that it has failed and refused to institute a suit or to pursue any other available remedy. Therefore, the demurrers were properly sustained upon authority of Trust Co. v. Rose, 192 N. C., 673; Richmond Co. v. Trust Co., 195 N. C., 545. See, also, Douglass v. Dawson, 190 N. C., 458; Wall v. Howard, 194 N. C., 311; In re Trust Co., 198 N. C., 783; Roscower v. Bizzell, 199 N. C., 656.

Affirmed.