Comr. of Banks v. . Carrier , 202 N.C. 850 ( 1932 )

On 17 July, 1928, the defendant purchased one hundred shares of the capital stock of the Brevard Banking Company, which closed its doors on 15 December, 1930, and is now in process of liquidation. Public Laws 1931, chaps. 243, 385. On 20 May, 1931, the Commissioner of Banks levied an assessment against the defendant equal to her stock liability. N.C. Code, 1931, sec. 218 (c), subsec. 13. The defendant appealed, alleging that the purchase of her stock had been induced by the fraud of certain officers of the bank. Upon the pleadings and the facts the trial judge affirmed the levy of the assessment and dismissed the appeal. The judgment of the Superior Court sustaining the levy should be affirmed upon the principle stated in Corporation Commission v. McLean, ante, 77, and the cases therein cited. Whether the defendant may maintain an action for fraud against the officers of the bank we are not called upon to decide; but after receiving semiannual dividends for 1929 and 1930 and exercising the privileges and accepting the profits of a stockholder she is not entitled to have her purchase of stock canceled to the detriment of the depositors and creditors of the bank. She should have acted with promptness and diligence.

We have held that actions such as this must be prosecuted in the individual name of the Commissioner of Banks and not under his official title. Commissioner of Banks v. Harvey, ante, 380; Commissioner of Banks v.Johnson, ibid., 387; Commissioner of Banks v. Mills, ibid., 509. This is a defect which may be cured by amendment. Judgment

Affirmed.