Post No. 70 of the American Legion v. . Trust Co.

168 S.E. 532, 204 N.C. 342, 1933 N.C. LEXIS 397

Opinion

(For digest see Flack v. Hood, Comr., ante, 337.) The object of the action is to obtain a preference on certain funds deposited in the Central Bank and Trust Company by declaring the defendants trustees for the plaintiffs of $5,384.79 which has been intermingled with the funds of the defendants on deposit in the Wachovia Bank and Trust Company to the credit of the Commissioner of the Central Bank and Trust Company; also to restrain the disbursement of funds until the sum of $5,384.79 is set apart for the benefit of the plaintiffs, or in lieu thereof that a lien be engrafted upon all the assets of the Central Bank and Trust Company to secure the payment of the stated amount.

The parties waived a trial by jury and agreed that the judge should hear the evidence, find the facts, and render judgment. The court found the facts and adjudged that the plaintiffs are not entitled to a preference but to a pro rata share in the assets. It is the opinion of the Court that the plaintiffs are entitled to a preference and that the case is governed by the principles stated in Parkerv. Trust Co., 202 N.C. 230, and Flack v. Hood, Comr., ante, 337. Judgment.

Reversed.