Asheville Safe Deposit Co. v. Hood

Clarkson, J. Defendants contend that it is doubtful if tbe plaintiff in this cause is tbe real party in interest. C. S., 446, 449. Sheppard v. Jackson, 198 N. C., 627. Under C. S., 449, supra, “A trustee of an express trust” — “may sue without joining with him tbe person for whose benefit tbe action is prosecuted.” Tbe record discloses that “Tbe plaintiffs and defendants having in open court waived a jury trial and agreed that tbe judge might bear tbe evidence, find tbe facts and render judgment thereon.” Tbe court below found: “That tbe said Central Bank and Trust Company having become, by reason of its insolvency, disqualified to act as trustee in tbe several deeds of trust executed to it for tbe benefit of tbe said Continental Mortgage Company and said Federal Mortgage Company, tbe plaintiff was in accordance with tbe terms and provisions of said deeds of trust duly substituted as trustee in all of said deeds of trust, and all of tbe amounts so collected by tbe Central Bank and Trust Company, as trustee under said deeds of trust on tbe notes and mortgages so delivered to it for collection, as aforesaid, should be paid to tbe plaintiff as such substituted trustee, to be applied by it in accordance with tbe terms and provisions of tbe agreement under which tbe said Central Bank and Trust Company collected tbe same.” This question as to plaintiff’s right to sue was not raised in tbe court below. Conceding, but not deciding that tbe plaintiff was not tbe real party in interest or “a trustee of an express trust,” we think that it is too late now to make this contention. Tbe theory on which tbe case was tried was to tbe effect that plaintiff was tbe real party in interest and authorized to receive any recovery in this action and make proper application of tbe fund. If tbe question bad been raised in tbe court below an amendment could have been allowed. This Court can allow an amendment as to parties. C. S., 1414. Kent v. Bottoms, 56 N. C., 69; Hodge v. R. R., 108 N. C., 24. From tbe facts found by tbe court below and tbe judgment thereon, tbe plaintiff, on behalf of tbe Continental Mortgage Company, is entitled to recover of defendants $98,919.90. *349 Tbe case is governed by Parker v. Trust Co., 202 N. C., 230, and Flack v. Hood, Comr., ante, 337. Tbe claims filed by plaintiff were on bebalf of tbe Continental Mortgage Company, and tbe Federal Mortgage Company. Tbe Federal Mortgage Company’s claim of $188,428.10 was denied by tbe court below, as a preference and in tbis we see no error. Tbe judgment of tbe court below is Affirmed.