Bank of Pinehurst v. Mid-Pines Country Club, Inc.

SchencK, J. There appears in the record the following consent order: “December Term, 1934. “In this cause the defendant P. R. Cruikshank & Company, having appealed to the Supreme Court from that portion of the final decree adjudicating that said defendant pay a part of the costs and receiver fees and attorney for receiver fees, it is by consent of parties, but without prejudice to any of the parties, considered and adjudged that the said receiver, nevertheless, disburse all the moneys in his hands under the terms of said decree, except that he will retain in his hands, subject *240 to tbe future order of tbe court, $800.00 of tbe funds belonging to tbe proceeds arising from sale of real estate to await tbe result of sucb appeal. J. H. Clement, Judge Presiding. “Consent: U. L. Spence, Attorney for Plaintiffs. “F. A. McCleneghan, Attorney for F. B. Cruihshanh & Company.” Tbe appellant makes but one assignment of error, as follows: “Tbe defendant F. R. Cruiksbank & Company, baying appealed to tbe Supreme Court, makes as its only assignment of error tbe judgment entered, as appears in tbe record, and its objection and exception thereto.” Tbe assignment of error, wben read in tbe light of tbe consent order, presents but tbe single question as to whether tbe court bad tbe right to provide in tbe judgment that a pro rata portion of tbe receiver’s fees and expenses, including fees to bis counsel, should be paid from funds derived from tbe sale of certain personal property of tbe defendant Mid-Pines Country Club, upon which tbe codefendant appellant F. R. Cruiksbank & Company held a conditional sales contract. It appears from tbe record that tbe receiver bad in bis bands from tbe sales of tbe various properties of tbe Mid-Pines Country Club, Incorporated, three funds, namely, $69,930 from real estate, and $10,000 from a sprinkler system on which tbe appellant held a conditional sales contract, and $10,000 from other personal property. It also appears from tbe record that tbe receiver bad tbe care and custody of tbe real estate and personal property, including tbe sprinkler system, from tbe time of bis appointment till tbe sale thereof, and that tbe duties of tbe receiver and bis attorneys were well and faithfully performed. There is no suggestion in tbe record or brief that tbe allowances made to them are excessive or unreasonable. No assignment of error assails tbe receivership or any action of tbe receiver except bis recommendation to tbe court that tbe expenses of tbe receivership be paid pro rata from tbe three funds mentioned. Tbe receivership inured to tbe benefit of tbe appellant in proportion to its claim, just as it did to tbe other creditors of tbe insolvent Mid-Pines Country Club. Having received tbe benefits of tbe receivership, tbe appellant, according to law and equity, should pay its pro rata portion of tbe expense thereof. Under these circumstances, we bold that bis Honor was clearly within bis rights in authorizing tbe receiver to .retain bis fees and expenses, including bis attorney’s fees, pro rata from tbe three funds in bis bands. Tbe principle upon which tbe case of Kelly v. McLamb, 182 N. C., 158, was *241 decided is applicable here, and is authority for that portion of the judgment of the Superior Court allowing a pro rata portion of the expense of the receivership to be taxed against the funds received from the sale of the personal property upon which the appellant held a conditional sales contract. Affirmed.