Eno Inv. Co. v. Protective Chemicals Laboratory

63 S.E.2d 637 (1951)

233 N.C. 294

ENO INV. CO. v. PROTECTIVE CHEMICALS LABORATORY, Inc.

No. 738.

Supreme Court of North Carolina.

March 7, 1951.

*640 Victor S. Bryant, Robert I. Lipton, and Ralph N. Strayhorn, all of Durham, for Third Mortgage Claimants, Appellants.

Egbert L. Haywood and John T. Manning, Durham, for appellants, Harold T. Sanford and E. C. Bull.

E. C. Brooks, Jr., Durham, for respondent, J. E. Markham, receiver, appellee.

Appeal of Third Mortgage Claimants.

JOHNSON, Justice.

We find no error in the order of the court below overruling the exception of these claimants to the report of the receiver and adjudging that their claim be accepted and treated as a common, unpreferred claim against the assets of the corporation in the hands of the receiver. If the claim be considered as secured by an unregistered deed of trust, it is entitled to no priority against the receiver. This is so for the reason that by the adjudication of insolvency and the appointment of the receiver, the creditors at large of the corporation, represented by the receiver, became in legal contemplation creditors for a valuable consideration within the meaning of our registration statute, G. S. § 47-20, and, therefore, the deed of trust as to the receiver is void. Observer Co. v. Little, 175 N.C. 42, 94 S.E. 526; National Furniture Manufacturing Co. v. Price, 195 N.C. 602, 143 S.E. 208; General Motors Acceptance Corporation v. Mayberry, 195 N.C. 508, at page 512, 142 S.E. 767.

Nor is the position of claimants improved by urging their claim as an equitable lien on the physical properties of the corporation. These liens, frequently resting in parol and usually being based on the doctrine of estoppel and unjust enrichment, while ordinarily enforceable as between parties and privies, Winborne v. Guy, 222 N.C. 128, 22 S.E.2d 220; 53 C.J.S., Liens, § 4, pp. 836 and 839, as a general rule are treated as being void as to a receiver representing the general creditors of a receivership estate. Hood, Com'r of Banks, v. Macclesfield Co., 209 N.C. 280, 183 S.E. 404. See also M. & J. Finance Corporation v. Hodges, 230 N.C. 580, 55 S.E.2d 201; and Lamb v. Hood, Com'r of Banks, 205 N.C. 409, 171 S.E. 359. The record here discloses no equities on the side of the *641 third mortgage claimants sufficient to take the case out of the general rule established by the decisions of this Court, which appears to have been correctly applied below by Judge Harris. The appeal of the third mortgage claimants is

Affirmed.

The receiver's motion to dismiss the appeal of the claimants Sanford and Bull appears to be well taken. There is no grouping of exceptions or assignments of error as required by Rule 19(3) of the Rules of Practice in the Supreme Court. Harrell v. White, 208 N.C. 409, 181 S.E. 268; Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126. Neither does the record reflect any exception to the order of 9 January, 1950, under which the receiver was directed to pay, and appears to have paid, the second mortgage claims. Nor does the record include a copy of this order. Hence it cannot be reviewed. Wiley v. Bessemer City Mining Co., 117 N.C. 489, 23 S.E. 448. It appears from the record that the payment of the second mortgage claim was first challenged by the exception of claimants Sanford and Bull to the order of 27 March, 1950, which order was entered after the claim had been paid by the receiver as a second mortgage preference under authority of the previous order of 9 January, 1950. Therefore this delayed exception (which was not brought forward and made the basis of an exceptive assignment of error) on procedural grounds is not entitled to consideration. However, the record indicates that this claim, being supported by a duly registered second deed of trust on the physical properties of the corporation, was properly paid as a preference. And while the exception of the claimants Sanford and Bull to the order of 26 August, 1950, for allowance of the claim of the third mortgage claimants, is not assigned as error, nevertheless a study of the record impels the conclusion that the court below properly admitted this claim as a common, unpreferred claim against the receivership estate. Where no unfair advantage is takenand none is made to appear here as to either the second or third mortgage claimsthere is nothing to hinder stockholders or directors from lending money and taking liens on corporate property as security. Wall v. Rothrock, 171 N.C. 388, 88 S.E. 633. On the appeal of claimants Sanford and Bull,

Appeal dismissed.