
    No. 851
    LAKE ERIE SUPPLY CO. v. BELMORE BANK. Co. et
    No. 19976.
    Supreme Court
    On motion to certify.
    Dock. July 14, 1926;
    4 Abs. 493.
    1197. TRUSTS — May a trust fund which is collateral security for the payment of promissory notes be subjected to the payment of said notes before judgments on the notes are taken against the makers?
    Attorneys — White, Cannon & Spieth, Cleveland, for Supply Co.
   This action was brought originally in the Cuyahoga Common Pleas whereby it was sought to subject certain trust funds to the payment of certain promissory notes.

It appears that the creditor, defendants-in-error including the Belmore Banking Company contend that the Commonwealth Banking & Trust Company has not properly performed its duties as Trustee.

Certain accounts belonging to The Lake Erie Lumber & Supply Company had been deposited with the Commonwealth Banking & Trust Company as Trustee by the National Discount Company. These accounts were collected by the Commonwealth Trust Co. or the Lake Erie Lumber & Supply Co. It is the purpose of this suit to have the court determine their equity in the accounts and to have said equity applied to the payment of certain notes in accordance with the stipulations of a certain contract between the National Discount Co. and the Commonwealth Trust Co.

One Molner, the assignee of the National Discount Co. and successor trustee to the Commonwealth Trust Co1, set up in his answer as Trustee that about $34,000 of the Supply Company’s accounts secured the payment of notes of the National Discount Co. in the sum of $28,000 which are held by the Belmore Banking Co. et. The answer further sets up that the Supply Company had collected said accounts but refused to make any accounting, therefore, and the Supply Company contends that it is indebted to the National Discount Co. in the sum of about $12,000 for advances made on accounts receivable.

The Cleveland Trust Company contends that under the contract with the National Discount ompany it is the holder of aboutC $11,000 in accounts of the Supply Company which were deposited by the National Discount Company to secure notes of the National Discount Company in the sum of $9500 which accounts were collected by the Lake • Erie Lumber & Supply Company.

Judgment was rendered by the Court of Appeals for the full amount of the claim of the Cleveland Trust Company and in favor of the defendants-in-error for their claims against the Trust Fund. The Supply Company in the Supreme Court contends: that the Trust Fund could not be subjected to the payment of the notes which they secured before judgment was taken on said notes.  