Odell Hardware Co. v. Holt-Morgan Mills

Hoke, J., after stating the case: The statute applicable, Revisal 1905, sec. 1224, provides as follows: “All the real and personal property of an insolvent corporation arrd all its franchise rights and privileges and effects shall, upon the appointment of the receiver, forthwith vest in him, and the corporation shall be divested pf the title thereto.” The facts showing that the order appointing the receiver was signed on 12 April and prior to the docketing of appellant’s judgment in the county where .the real estate of the corporation was situated, by the plain intent and meaning of the law, the appellant has acquired no lien on the corporate assets and holds only a claim as general creditor. The position is not affected by the fact that the receivers did not qualify or give bond until 14 April. True, the receivers, unless otherwise provided in the order, could not properly assume control of the property till they had qualified. Certainly they could make no authoritative disposition of it before that; but the language of the statute is that the property vests at the date of the appointment and that the title of the corporation is divested at that date. The statute was evidently expressed in these explicit and peremptory terms with a view of insuring a distribution of the property under conditions existent at the time of the appointment and to prevent a creditor from obtaining any advantage over another from and after that time, and it is, therefore, expressly provided that from such date the corporation shall have no interest in the property on which a lien can be' acquired. We were cited to several authorities by counsel to the effect that a judgment signed out of term shall be considered a valid judgment, and, as between the parties, it may be entered and given the effect of a judgment nunc- pro tunc; but we find nothing in these cases that, on the facts now presented, and as against other creditors, would uphold a lien in plaintiff’s favor or carry the effect of its docketed judgment by relation from the time it was actually entered on 12 April to- the preceding term of the court in March. Our statute, Revisal 1905, sec. 574, enacts that a judgment .shall be a lien from the time it is docketed. The only provision made for extending this lien by relation to a preceding time is in sec. 573, to the effect that judgments entered during any term of the court and docketed during the term or within ten days thereafter shall *311 be held and deemed to have been docketed on the first day of the term. This provision does not purport to apply to a judgment signed out of term and a judgment nunc pro tunc, though by agreement, is not allowed to take effect by relation and confer a lien to the prejudice of third parties. Ferrell v. Hales, 119 N. C., 199; 23 Cyc., 1365. On the facts of this record, the receiver, representing the rights and interests of all the creditors, is not concluded by an agreement made by the attorney of the claimant and counsel representing the mill. In the citation from Cyc. it is said that a judgment entered nunc pro tunc does not relate back for the purpose of a lien to the day as of which it is entered, but takes effect only from its actual entry. Even in cases coming within the express provision of the statute, that is, judgments entered during a term, it is held with us that this lien by relation has no application as against claimants who have meantime acquired the title bona fide and for value. Fowle v. McLean, 168 N. C., 537; McKinney v. Street, 165 N. C., 515. In such case the law will take notice of fractions of a day in favor of such a purchaser, and it would seem that the receivers, vested by statute with title from the time of their appointment and representing all the creditors, should be entitled to, at least, equal consideration. We find no error in the proceedings below, and the judgment is Affirmed.