
    HUMPHREY BROTHERS et al. v. BUELL-CROCKER LUMBER COMPANY.
    (Filed 7 November, 1917.)
    1. Corporations — Mortgages — Receivers — Equity of Redemption — Liens— Priorities — Statutes.
    Under a deed to lands to a corporation, with, immediate mortgage to secure the purchase price, the title passing is only for the purpose of the mortgage, and the corporation acquires only the equity of redemption; and the result is the same when it acquires land already subject to mortgage; and where such mortgages have been promptly registered and the corporation became defunct, with claims against it for torts, for labor performed within the 60 days prior to the appointment of receiver (Revisal, secs. 1131, 1206), and also cost of receivership, etc. (Revisal, sec. 1226), and the lands have since been sold, with the proceeds in court subject to distribution in accordance with the priorities, the mortgagees are entitled to be paid in full; then the cost of receivership and then the statutory priorities for torts and labor will be distributed pro rata, etc.
    
      2. Corporations — Mortgages—Liens—Statutes.
    A mortgagee of tlie legal title of property of a corporation, to secure a debt, takes subject to laborers’ liens, judgments for torts, and expenses of receivership, and other court proceedings to wind it up, in case of insolvency. Revisal, secs. 1131, 1206, 1207, 1226.
    Walker, J., concurring. Brown, J., not sitting.
    Appeal by receivers of lumber company, Humphrey Brothers, and Sizer & Co., mortgagee, et als., from Bond, J., at February Term, 1917, of New HaNoveR.
    This is an appeal from an order of Judge Bond distributing the funds in hand and adjudicating property mortgaged for purchase money to be not liable primarily for payment of tort claims and labor claims against the Buell-Crocker Lumber Company, nor liable for costs and expenses of receivership, nor for labor and tort claims incurred by receivers while operating the plant under an order of the Superior Court, until payment of purchase money.
    The receivers and certain claimants appealed. The order was made upon exceptions to the report of the referee.
    
      J. 0. Garr for receivers.
    
    
      Kenan & Wright for receivers’ creditors.
    
    
      Stevens & Beasley for Cape Fear Lumber Company.
    
    
      Winston & Matthews for C. W. Mitchell and executors of W. P. Taylor et als.
    
    
      E. K. Bryan for Murchison National Bank.
    
    
      A. D. Ward, William F. Ward, and Robert T. Bryan for D. L. Farrior.
    
   ClaRK, C. J.

On 6 January, 1910, Frank Buell purchased of the Cape Fear Lumber Company certain property, and to secure the purchase money executed simultaneously with the conveyance a mortgage on the same for $54,582, which was immediately registered.

Some time thereafter, Frank Buell conveyed his equity of redemption in said property to the Buell-Crocker Lumber Company, which went into possession of the property and remained in possession until the receivers were appointed, who sold the same, under order of the court, for $7,850, which sale was duly confirmed, and the receivers executed a deed to the purchaser. The said sum of money is now in the hands of the receiver. The court ordered tlie property sold, free from lien, and transferred the lien of the Cape Fear Lumber Company from the property to the fund now in court.

The Cape Fear Lumber Company was made a party, after the property had been sold by tlie receivers, upon a petition asking the court to turn over to it the fund derived from such sale, to be applied to the payment of its mortgage for the purchase price, on which there was due at the time of the sale $12,706.21, all of which was due, with no means of satisfaction, except the proceeds of the sale. Said Cape Fear Lumber Company was not made a party to this proceeding until after the receivers had ceased operating the mill and plant and had sold most of the corporate property, and after all the costs and expenses had been incurred, except the cost of a reference, which reference was had for the purpose of taking evidence and rejoorting to the court the facts found, to enable the court to adjust the equities of the various parties in interest.

The Buell-Crocker Lumber Company, when it purchased the equity of redemption from Frank Buell, agreed with him to pay the mortgage debt due by him to the Cape Fear Lumber Company, but said agreement was between him and the Buell-Crocker Lumber Company, and the Cape Fear Lumber Company was not a party thereto. There was no agreement whereby the Cape Fear Lumber Company agreed to accept the Buell-Crocker Lumber Company as the debtor in said mortgage, nor did it agree to release Frank Buell as the debtor. Said Buell-Crocker Lumber Company, however, paid the Cape Fear Lumber Company certain sums on account of said indebtedness, but paid it in partial exoneration of property in which it had bought the equity of redemption.

On 23 April, 1912, the Buell-Crocker Lumber Company bought from D. L. Farrior certain lands, and executed a mortgage thereon for the purchase money, $25,000 of which has never been paid and is more than the property will bring. In the same year the Buell-Crocker Lumber Company bought from the New Hanover Shingle Mills certain timber, and executed thereon a mortgage for the purchase money, on which $26,150 is still due, and it is found by the judge, upon admissions, that it will not bring the balance due on said mortgage.

The Buell-Crocker Lumber Company also executed to the Murchison National Bank, for money used in its operations, a mortgage on lumber on its yard, and a second mortgage for $14,000 on part of the property set out in the mortgage for the purchase money executed by Frank Buell to the Cape Fear Lumber Company, this mortgage covering other property also. The property in the first-named mortgage brought $1,850. About the same time the Buell-Crocker Lumber Company executed a mortgage on two mill plants to Sizer & Co., for $10,000, for money borrowed.

The Buell-Crocker Lumber Company afterwards became insolvent, and in 1914 Humphrey Brothers brought suit, and it was placed in the hands of a receiver. At this time the company was indebted to various parties, including claimants, for $6,787.31, for labor'done within 60 days prior to appointment of receivers, and also for some claimants in tort for $800, whose lands bad been burned over by its negligence. The receivers proceeded to operate the plant, and incurred a larger indebtedness, to tbe payment of which said 60-day labor claimants and the tort claimants and all the other appellants tried to subject the amounts received by the receivers from the sale of the property.

The court below adjudged that the receivers pay over to the Cape Fear Lumber Company, or their representatives, the $7,850, proceeds of the property on which it had a mortgage for the purchase price. To this judgment the receivers, the 60-day laborers, and their creditors, Sizer & Co., mortgagee, Humphrey Brothers, the Murchison National Bank, and the tort claimants each excepted and appealed.

After the institution of receivership the following indebtedness accrued: Claim in tort of Gibson James for burning over land, $53.75; receiver’s pay-roll for labor, $3,446.32; receiver’s other indebtedness, in the amount of $12,775.34.

The receivers, upon their appointment, gave bond, took charge of the property, published the notice required by chapter 173, Laws 1911, and operated the plant for about a year, without objection from any source, until the hearing of this cause before the referee, after all operations had ceased and all the indebtedness of the receivership, had been incurred.

The questions presented are not as to the amount of these claims, but solely as to their order of priority. The claims fall into four classes:

1. Claims for labor performed within 60 days prior to the appointment of the receivers, who claim priority under Eevisal, 1131.

2. Claims in tort for damages by fire occurring prior to receivership, but the amount thereof determined by the referee, under Eevisal, 1206.

3. Debts incurred by the receivers in operating the plant, including claims for labor and torts and the costs of the action, including fees of receivers and their counsel (Eevisal, 1226).

4. Mortgages executed to secure money borrowed for the operation of the business, executed to Sizer & Co. and the Murchison National Bank.

The judge below held that none of these claims took priority over the mortgage indebtedness to the Cape Fear Lumber Company, or for the purchase money given to D. L. Farrior, the New Hanover Shingle Mills, and others, and ordered the proceeds from the sale of the property described in said mortgage to be applied to the respective mortgage debts.

The court adjudged that the receivers pay over to the Cape Fear Lumber Company the said $7,850, the proceeds of the property embraced in its mortgage, and that the New Hanover Shingle Company, Mitchell, Taylor, and Brown, and D. L. Farrior, vendors of property on which a mortgage for the purchase money was retained are entitled to the property covered by the respective mortgages, which amount to more than the property therein will bring, and that the same is not liable to be assessed for any sum whatever, either for costs and expenses in this case nor for labor or tort claims against the Buell-Orocker Lumber Company, or for any claims of any character against the receivers of the Buell-Orocker Lumber Company.

The court finds as a fact that the property in the hands of the receivers, and the fund in court after the application to the mortgages of the property (or its proceeds) embraced in said mortgages, is not sufficient to pay in full the court costs of this proceeding, eliminating the receiver’s indebtedness, allowance to receivers or their counsel, and the tort and labor claims filed and allowed against the Buell-Orocker Lumber Company, and directed that the fund in court shall be held and nothing paid out until this Court on appeal shall pass upon the question presented.

The court found as a fact that neither of the three purchase-money mortgagees has anything to do with the disputes between the other parties, and that there is no reason to believe that any further assets of said corporation can be discovered, and that there is no dispute as to the amounts due the tort and labor creditors or creditors of the receivers, as found by the referee. The court reserved the allowance of the receivers and attorneys to be fixed by the court hereafter. The judgment provided that, after complying with the above provisions thereof, the residue of the funds, if any, should .be distributed as follows:

1. To the court costs proper, including the expenses of reference and costs incurred in carrying on said business under order of the court in this cause, pro rata, until paid in full, if the fund be sufficient.

2. After all the above provisions are complied with, if any fund remains, it shall be paid to labor claims for work done within 60 days prior to the appointment of receivers, and claims in tort existing when the receiver was appointed, pro rata, until paid in full, if fund be sufficient.

It is admitted that, after above requirements have been complied with, all funds will have been exhausted. The respective appellants contend:

1. The labor claimants and tort claimants assert that their claims accrued in 60 days before the receivership and are liens upon all the assets of the corporation prior to any of the mortgagees.

2. Sizer & Co. and the Murchison National Bank, whose mortgages were given to secure credit to operate the business prior to the receivership, properly concede that their mortgages are subject to the claims for labor, tort, and receivership indebtedness in classes 1 and 3, above set out, but they assert priority to the mortgages for the purchase money.

3. The receivers contend that, being authorized by the court to operate the mill and wind up the business, the indebtedness and expenses incurred by them should be paid in preference to all other indebtedness.

4. Tbe receivers further contend that tbe tort and labor claims are prior liens upon tbe property described in tbe purcbase-money mortgages, as well as tbe property covered by tbe mortgages to Sizer & Co. and tbe Murchison National Bank, and that they are interested in tbe enforcement of such liens, because, if tbe purchase-money mortgages have priority there are not sufficient proceeds from tbe other property to defray tbe expenses and costs of tbe receivership.

Tbe appellants have waived tbe assignments of error based on tbe lack of sufficient evidence to support tbe findings of fact, and tbe appeal therefore rests entirely upon tbe questions of law touching tbe priority of tbe several claims.

Tbe judgment-below must be affirmed in every respect.

In Roberts v. Mfg. Co., 169 N. C., 27, it was held: “Property acquired by a private corporation subject to a valid registered mortgage does not become assets of the corporation except subject to tbe prior lien; and tbe lien given to laborers on the assets of an insolvent corporation for work done under tbe conditions stated in Revisal, 1206, cannot affect tbe vested rights of tbe prior lienholders.”

In Walker v. Lumber Co., 170 N. C., 460, it is said: “Revisal, 1131,, which gives to judgments against corporations for labor performed and torts committed priority over prior mortgages executed by tbe corporation has no application,” where tbe corporation acquired tbe property subject to such prior mortgage.

One who takes a mortgage upon corporation property for money loaned to operate it or to secure other debt, past or prospective, does so with tbe knowledge that, under Revisal, 1131, 1206, 1207, and 1226, the lien of bis mortgage is subject to be displaced in favor of laborers’ liens or judgments for tort and the expenses of receivership or of other court proceedings to wind up tbe corporation in cases of insolvency.

But when tbe corporation has acquired tbe property subject to a valid registered mortgage, or at tbe time of tbe purchase thereof has executed a mortgage to secure tbe purchase money, which was immediately registered, tbe property is an asset of tbe corporation only to tbe extent of its equity of redemption. Tbe corporation itself could not divest tbe lien of tbe mortgage subject to which it acquired tbe property, and its creditors, whether laborers or judgment creditors in tort, cannot subject tbe property of tbe mortgagees and divest their interests, to be applied to their own claims against tbe corporation. This would seem too plain for discussion.

Tbe appellants rely upon Coal Co. v. Electric Co., 118 N. C., 232. In that case there was a mortgage on part of tbe property to secure tbe purchase money, and another mortgage to secure money borrowed to operate tbe concern. We understand tbe decision as bolding only that this latter mortgage is subject to the claims for “material furnished.” If it can be construed to divest the lien of the mortgage for the purchase money executed simultaneously with the purchase of the property, we cannot give it our approval. In the very next volume (Baker v. Robbins, 119 N. C., 289) the Court held: “Unless the statute otherwise provides, a mortgage lien is superior to a subsequent lien created by statute.” This must apply only, as we have already said, to property owned by the corporation, i. e., in this case, the equity of redemption, for no statute could divest the interest of the mortgagee in land which the mortgagor corporation has bought subject to such mortgage. This view is clear in all decisions since, down to McAdams v. Trust Co., 167 N. C., 498, where the Court approved the following ruling in U. S. v. R. R., 79 U. S., 362: “(1) A mortgage by railroad companies covering all future-acquired property attaches only to such interest therein as the company acquires, subject to any liens under which it comes into the company’s possession. (2) If the company purchase property subject to a lien for the purchase money, such lien is not displaced by the general mortgage. (3) If the company give a mortgage for the purchase money at the time of the purchase, such mortgage, whether registered or not, has precedence of the general mortgage.” (We would not be understood as approving this last paragraph, under the registration laws in this State, when the mortgage is not registered.) “(4) This rule fails, however, when the property purchased is annexed to a subject already covered by the general mortgage and becomes a part thereof, as when iron rails are laid down and become a part of the railroad.”

When the vendors convey property and simultaneously take back a mortgage to secure the balance of the purchase money, and such mortgage is at once recorded, there is not an instant of time in which the vendee has the legal title; and, therefore, in such ease the wife of the vendee acquires no right to dower in priority to the mortgagee, nor does any right of homestead nor of a prior judgment attach. Bunting v. Jones, 78 N. C., 242; Moving v. Dickerson, 85 N. C., 466; Hinton v. Hicks, 156 N. C., 24.

Revisal, 1226, provides: “Before distribution of the assets of an insolvent corporation,” the court shall allow reasonable compensation to receiver and the costs and expenses of administration of his trust, and the cost of proceedings in said court "to be first paid out of said assets!’

The first rule to be observed is, that the property to be subjected must be the property of the corporation, and when there is a mortgage given for the purchase money simultaneously with the purchase, and immediately recorded, the corporation owns only the equity of redemption, and the vested rights of such mortgagee cannot be divested to the payment of any liability, for any purpose, of the insolvent.

Under Revisal, 1226, tbe first assets tbat are tbe property of tbe corporation must be applied to tbe costs of tbe proceedings in court, including tbe fees of tbe receiver and referee, and (except as to private corporations, Roberts v. Mfg. Co., 169 N. C., 33; Trust Co. v. Coal Co., 27 Col., 246) receivers’ certificates issued in operation of tbe plant, under tbe orders of tbe court, and liabilities incurred for labor,' and torts. Lumber Co. v. Lumber Co., 150 N. C., 282.

Doubtless, if it were shown tbat tbe conveyance and tbe taking of a purchase mortgage back were a device to exempt tbe property from liability for labor and torts, such mortgage would be held no bar to collection of such claims.

Tbe next liability is to claimants for labor performed within 60 days prior to tbe appointment of tbe receiver, and for claimants in tort for which liability bad accrued when tbe receiver was appointed. Revisal, 1131 and 1203.

It being found as a fact by tbe judge, and not contested, tbat there were no assets tbat could accrue beyond this point, tbe court refrained from passing upon tbe priority among other creditors.

Affirmed.

BeowN, J., not sitting.

Walker, J.,

concurring: It is well settled that an unregistered mortgage is of no avail as against creditors or purchasers for value, and the quotation in McAdams v. Trust Co., 167 U. S., 498, from U. S. v. R. R., 79 U. S., 362, so far as the third proposition therein decided is concerned, was not intended to ignore this well-settled rule or statutory requirement in this State. Tbe proposition itself was not presented in the McAdams case, and it was not quoted with any intention whatever of approving it, but merely because it happened to be a part of the general matter decided by the other Court, passing then upon the terms of the statute of another jurisdiction, not, of course, applicable here, and to show bow far some courts bad gone, contrary to our statutes and decisions in regard to mortgages, in preserving vested rights. Tbe opinion in the McAdams case throughout adverts prominently to the necessity of registration of a mortgage in this State in order to save rights thereunder as against creditors and purchasers. Tbe McAdams case is in entire harmony with this case, when rightly considered, and, I believe, has been cited as direct authority to sustain what is herein decided. Tbe point decided in the McAdams case assumed tbat the mortgage must be registered, of course, in order to vest any preferential right, as this language will show very clearly: “Tbe work and labor was performed and the material furnished by the plaintiff, with full knowledge, in law at least, and also in fact, of the prior mortgage. He must be presumed to have been able to take care of bis own 'interests and to have contracted for a lien witb reference merely to tbe equity of redemption and in subordination to tbe older encumbrance, of wbicb be bad full notice, and bis case must now be judged by these considerations. Tbe mortgagor could not give bim a better right or title than be himself possessed at tbe time. As tbe work was commenced after tbe defendant’s mortgage was registered, tbe lien of tbe plaintiff is subject to tbe prior lien of tbe mortgagee, and tbe court should have so declared.”  