In considering the appeal in this case and the opinion written by Mr. Justice Cothran, I shall not enter into a discussion of the facts or the legal questions involved, but shall simply state my position as to the conclusions reached. *Page 163
I concur in the opinion of Mr. Justice Cothran in so far as he holds that the Bank of Aynor is entitled to a lien on the securities set apart by the officers of the American Bank Trust Company for the Bank of Aynor, and later delivered to the officers of the Bank of Aynor by the State Bank Examiner, and that the proceeds derived from these securities should be paid over to the Bank of Aynor to the extent of $44,189.38, with interest at 7 per cent. from June 24, 1926, which sum was realized from the sale of the Horry County notes by the American Bank Trust Company. I think the facts in the case amply support this position. I am also of the opinion, that, if any portion of the funds derived from the sale of the Horry County notes came into the hands of the receiver of the American Bank Trust Company, and can be traced as such particular fund, the same should be paid over to the Bank of Aynor, to be credited upon the $44,189.38 item. The authorities are numerous in support of this position.
But I do not agree with the views expressed in the opinion of Mr. Justice Cothran as to the Bank of Aynor being entitled to a preferred claim against the general funds in the hands of the receiver of the American Bank Trust Company for the payment of the said claim of the Bank of Aynor, the $44,189.38 item. In my opinion, the weight of authority is opposed to this position, and, in order for such a claimant to be given a preference in the distribution of the general funds, it is incumbent upon the claimant to be able to trace the funds into the hands of the receiver and identify them as such.
I therefore most respectfully dissent from the view expressed in the opinion of Mr. Justice Cothran in holding that the Bank of Aynor should be given a preference for its said claim against the general funds in the hands of the receiver of the American Bank Trust Company, but concur in the view expressed by Mr. Justice Cothran as to the *Page 164 Bank of Aynor being entitled to a lien upon the said securities, pledged to the Bank of Aynor by the officers of the American Bank Trust Company to the extent of the $44,189.38 item; and also, if any portion of the fund derived from the sale of the Horry County notes can be traced into the hands of the receiver of the American Bank Trust Company, and identified as such, that the same should be paid over by such receiver to the Bank of Aynor, to be credited on said claim of $44,189.38.
I think the case should be remanded for such further procedure as is not inconsistent with the views herein expressed.
MR. CHIEF JUSTICE WATTS concurs.