The opinion
Stacy, C. J.,
dissenting: The question is this: Will the statutory liability of stockholders in a bank be enforced against one who appears as a stockholder only by reason of the faithlessness of the bank? The answer should be, No.
We have held that fraud on the part of an officer of a bank in the sale of its stock will release the purchaser of this statutory liability. Hood, Comr., v. Martin, 203 N. C., 620 , 166 S. E., 793 . The conclusion rests upon the principle that the statute existent at the time enters into and becomes a part of the contract of stock subscription, and that no contract, or its complement, will be enforced which is grounded upon a wrong. Hood, Comr., v. Paddison, 206 N. C., 631 , 175 S. E., 105 .
It is not after the manner of equity “to condone a little evil that good may come of it.” It is submitted that in the instant case the plaintiff is seeking to gather grapes from the thorn-bush which the bank planted. He invokes the trust-fund doctrine to take from the defendants, through the wrong of the trustee bank, not “exclusively for the benefit of corporate creditors,” as said in Hill v. Smothers, 173 N. C., 642 , 92 S. E., 607 , but that its general assets may be increased. Under the 1927 amendment to the statute, ch. 113, sec. 13 (d), Public Laws 1927, the liability of the stockholders is made “immediately available as general assets of the bank for distribution as other assets.” It was upon this amendment that the Martin case, supra, was decided, and distinguished from Mill v. Smathers, supra.
Undoubtedly the bank could not recover in the instant case because of its breach of trust, yet all sums collected by the plaintiff are to “become immediately available as general assets of the bank.” Thus by indirection is accomplished that which is not permitted to be done directly. The whole difficulty arises from the failure of the bank in the first instance to discharge its trust obligation to. the defendants. Fisher v. *383 Fisher, 170 N. C., 378 , 87 S. E., 113 . Supposed rights bottomed upon this neglect ought not to stand. Nullus commodum capere potest de injuria sua propria. Broom’s Legal Maxims, sec. 279; Parker v. Potter, 200 N. C., 348 .