WILLIAMS et al., Ex'RS. v. MUNROE.

Neill v. Riddle, 66 N. C. R. 290. In that case the widow, in the lifetime of her husband, had purchased the land at a Sheriff's sale, under a judgment and execution subsequent to the making the deed of trust. It was held that her possession could not be adverse to the trustee or to a purchaser under the trust. So here, although the bargainor had been declared a bankrupt subsequent to the execution of the deed of trust, and the bargainor's interest in the land had been sold by the assignee and purchased by the widow, the defendant; still, her title, if any, thus acquired could not be set up as a defense to this action. The purchaser from the assignee in bankruptcy could stand in no better condition than a purchaser at Sheriff's sale under a judgment and execution. Walke and wife v.

Moody et al., 65 N. C. R. 599. The Sheriff, or the assignee, could sell only such interest as the bargainor in the trust had, and all that was subject to the prior right of the purchaser under the trust.

The defendant, in her answer, sets up the deed of trust under which the plaintiffs claim, and alleges, that this deed of trust, besides the land in controversy, conveyed some seventeen valuable slaves, that these slaves were ample for the payment of the debts secured in the trust, and were to be first sold; and that the trustee was guilty of negligence and unfaithfulness in not selling the slaves, and paying the debts out of the proceeds of such sale. What claim there may be against the trustee for negligence or unfaithfulness, cannot be made a question in this case; and parties interested must pursue their remedy against the trustee, if they have any.

The fifth defense set up in the answer of the defendant cannot be made in this action-that the plaintiffs' testator was a member of the firm of Murchison, Reed & Co., and one of the trustees in the deed of trust of Christopher Muuroe, and therefore could not become a purchaser at his own sale. The deed of trust is to John D. Williams alone, the plaintiffs' testator

WILLIAMS et al, Ex'RS. v. MUNROE.

being one of cestui que trusts in said deed; but if it were as alleged it would not avail the defendant.

The seventh defence set up, to wit: that the husband, at his death, had an equitable interest in the lands, and that his wife was entitled to be endowed of that equity, cannot avail the defendant, as the deed of trust, under which the plaintiffs claim, was made subsequent to the marriage of the defendant with the bargainor in trust.

His Honor submitted two, and only two, questions to the jury. "First, was the Bank debt of Christopher Munroe, upon which Duncan Murchison, Alexander Murchison and Archibald Graham were endorsers, and to indemnify whom the deed of mortgage was made to them as mortgagees, of the 5th of December," 1856, paid and satisfied in the manner testified by John D. Williams?

"Second. Were the slaves retained in possession of Christopher Munroe after the execution of the deed of trust to John D. Williams, trustee, of the 25th April, 1859, and the sale under the trust postponed by the trustee, at the instance of Christopher Munroe, with the concurrence of the cestui que trusts until emancipation, thus rendering recourse to the land necessary to pay the debts secured in the trust?"

Both the questions thus submitted to the jury were found in favor of the plaintiffs, and if his Honor erred at all it was not against the defendant.

There is no error.
PER CURIAM,

This will be certified.

Judgment affirmed.

THE EX. B'NK OF COLUMBIA v. TIDDY AND DAVIDSON.

THE EXCHANGE BANK OF COLUMBIA AND C. H. BALDWIN vs. WILLIAM TIDDY and R. H. DAVIDSON.

The dissolution of a banking corporation, with no provision of law for collecting its debts, deprives it of the power to do so; but it was held, that an act of the Legislature of South Carolina, passed since the war to enable its banks to renew their business, or to place them in liquidation; and a decree of a Court in that State declaring a certain bank to be insolvent, and putting it in liquidation, did not dissolve the corporation, but continued its existence for the purpose of collecting its debts and winding up its affairs.

It appears that under the C. C. P., sec. 299, which allows an appeal to the Supreme Court from an order of the Superior Court, granting or refusing a new trial, the Supreme Court may grant a new trial because of the refusal of the continuance of his case to a party by the Superior Court, where in law he was entitled to it, or where the refusal was manifestly unjust and oppressive, and merits were shown.

The act of 1869-'70, ch. 4, which authorizes the defendants in judgments obtained by banks chartered by this State upon a note given to, or a contract made with a bank or its officers, to pay and satisfy the same with the bills of such bank, is constitutional, and construed with the act of 1868, ch. 47, and 1868-'69, ch. 77, in pari materia, applies as well to foreign as to domestic banks.

[Fox v. Horah, 1 Ired. Eq. 358, Mann v. Blount, 65 N. C. Rep. 99, and Bink of Charlotte v. Hart, at present term, cited and approved.]

CIVIL ACTION, tried before Henry, J., at a Special Term of the Superior Court of MECKLENBURG County, held in January

1872.

The action was commenced in April, 1869, in the name of the Exchange Bank of Columbia, a corporation created by a statute of South Carolina prior to the year 1868, and it sought to recover from the defendant the amount of a note stated in the complaint.

Shortly before the adjournment of the Court, on the last day set for the trial of issues of fact, this case was called for trial. The defendants' counsel stated to the Court that the case had

THE EX. B'NK OF COLUMBIA v. TIDDY AND DAVIDSON.

been reached unexpectly, by the laying over of a large number of cases on account of the sickness of a member of the bar, and as his client, William Tiddy, an old and infirm man, was detained from Court by the inclemency of the weather and by the belief that his case could not be reached, he was not ready for trial, and desired a continuance of it until the following Monday, or some other day of the term. The Court denied the application, and ordered that the trial proceed. The counsel for the plaintiffs then exhibited to the Court a long exemplification of a record from South Carolina, showing that the Exchange Bank had gone into liquidation about the 1st December, 1869, and that C. H. Baldwin had been duly ap pointed receiver of its effects and assets, and moved the Court that the said C. H. Baldwin be made a party plaintiff with the Exchange Bank, and showed that a notice of the motion had been given to the defendants at July Term 1871. The motion was opposed by the counsel for the defendants on the ground, that as early as Spring Term 1870 of the Court, the dissolution of the bank, as a corporation, had been suggested on the record. The plaintiff's motion was granted, and C. II. Baldwin was made a party plaintiff with the bank.

The defendants' counsel then insisted that such an amendment in a substantial matter operated as a continuance; but the Court ruled otherwise, and ordered the trial to proceed.

The plaintiffs' counsel then read the note and endorsements, and there being no evidence on the part of the defendants, the plaintiffs, under the charge of his Honor, had a verdict for a sum ascertained by the legislative scale applied to the note, which was dated in April 1864.

The counsel for the defendants then moved for a new trial upon an affidavit, which stated, in effect, that when the case was called for trial he was absent, for the reason that his counsel had informed him that his case could not be reached that day, and also because of his feeble health and the inclemency of the weather; that owing to his absence he had been unable to ob

THE EX. B'NK OF COLUMBIA V. TIDDY AND DAVIDSON.

tain the benefit of the plea, as a set-off, of the bank bills of the Exchange Bank which he then held, and still holds, to a larger amount than the debt due the plaintiffs.

The motion for a new trial was disallowed and a judgment rendered on the verdict.

The defendants' counsel then moved for and obtained a rule upon the plaintiff's to show cause why they should not accept the bills of the Exchange Bank of Columbia in payment of the debt, and have satisfaction of the judgment, excepting the costs of the action, entered of record.

The plaintiffs' counsel, admitting that the defendants held the bills of the bank, showed for cause against the rule, that the Exchange Bank of Columbia was not a bank chartered by this State, but by the State of South Carolina, and that the present action did not come within the provisions of our statutes relating to the set-off of bank bills to debts due by banks, and actions brought by them or by any assignee, or endorsee, or receiver, or officer of such corporations seeking to recover such debts.

His Honor being of opinion that the defendants were not entitled to the benefit of the said statutes, which related only to domestic, and not to foreign banks, dismissed the rule, and the defendants thereupon appealed from the judgment rendered for the plaintiffs.

Jones & Johnston, for the plaintiffs.

Guion and J. H. Wilson, for the defendants.

RODMAN, J. The points made by the defendant before the rendition of judgment against him need be noticed only briefly. 1. If the plaintiff corporation has been dissolved and there is no provision of law by which the debts owing to it can be collected, of course the plaintiff must fail. Fox v. Horah, 1 Ire. Eq. 358. But we think that is not the result of the Act of the Legislature of South Carolina to which we were referred,