In Re Kirkman Furniture Company

129 S.E.2d 471 (1963)

258 N.C. 733

In the Matter of KIRKMAN FURNITURE COMPANY, a corporation, In State Court Receivership. UNITED STATES of America, Appellant, v. Ben L. HERMAN, State Court Receiver et al., Appellees.

No. 593.

Supreme Court of North Carolina.

February 27, 1963.

*474 Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Joseph Kovner and Fred E. Youngman, Attorneys, Department of Justice, and William H. Murdock, U. S. Atty., for appellant, United States of America.

Arch K. Schoch, High Point, for Receiver, appellee.

Charles W. McAnally, High Point, for North Carolina National Bank, appellee.

Forrest E. Campbell and William D. Branham, Greensboro, for Guilford County and City of High Point, appellees.

DENNY, Chief Justice.

The appellant has preserved no exceptions entered in the court below nor has it set out any assignments of error in the record on appeal. Even so, since we allowed certiorari, we will examine the record proper to determine whether or not there is error of law appearing thereon adversely affecting the rights of the appellant as between it and the appellees who are parties to the appeal. Schloss v. Jamison, 258 N.C. 271, 128 S.E.2d 590; Logan v. Sprinkle, 256 N.C. 41, 123 S.E.2d 209; Cratch v. Taylor, 256 N.C. 462, 124 S.E.2d 124; Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118.

Counsel who argued the case before this Court on behalf of the appellant stated to the Court that the only parties to this appeal are those on whom notice of its petition for writ of certiorari were *475 served. Consequently, the only question presented for our consideration and determination is whether or not the order of distribution entered in the Municipal Court of the City of High Point and affirmed in the Superior Court of Guilford County was erroneous in any respect as between the appellant and those lienholders who are parties to this appeal. It follows, therefore, that we will not consider or undertake to determine whether or not there was error in the preference given to the claims of the wage earners entered in the Municipal Court of the City of High Point on 31 January 1961. The order with respect to the priority given to such wage earners stands unchallenged on this appeal, notwithstanding our decision in Leggett v. Southeastern People's College, 234 N.C. 595, 68 S.E.2d 263.

The Congress of the United States in 1797 enacted a statute conferring upon the government a right of priority in payment out of the assets of an insolvent debtor of all claims due the United States. There has been no substantial change in this statute in the meantime, which is now R.S. 3466, 31 U.S.C.A. § 191, the pertinent part of which reads as follows: "Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied."

"It is well settled that the priority statute does not create a lien upon the debtor's property in favor of the United States, but merely confers upon the government a right of priority in payment out of that property in the hands of the debtor's assignees or other representatives, under the conditions specified in the statute. It follows that if, before the right of priority of the United States accrues under the statute, the debtor parts with his property, either absolutely or conditionally by way of mortgage or other liens, or involuntary liens are acquired against the property, the priority of the United States does not attach to such property, and the claims of the transferee, mortgagee, or other lienee are superior to that of the United States, at least where the lien so created or acquired is a specific lien upon specific property, as contradistinguished from a general lien upon all the property of the debtor. While the lower federal courts have followed the foregoing rule, the Supreme Court of the United States has declared that it has not yet decided whether a specific and perfected lien will be accorded priority against the United States under Revised Statutes section 3466. However, it is well settled that, even though section 3466 does not creat a lien upon the debtor's property in favor of the United States, a claim of the United States within the scope of the statute is entitled to priority as against a pre-existing inchoate lien on the debtor's property. For the purposes of the federal statute, a preexisting lien is inchoate and not specific, unless it is definite, as of the crucial time of insolvency, in at least three respects: (1) the identity of the lienor, (2) the amount of the lien, (3) and the property to which it attaches. * * *" (Emphasis added.) 29 Am.Jur., Insolvency, section 77, page 346 et seq. Bramwell v. United States Fidelity & Guaranty Co., 269 U.S. 483, 46 S. Ct. 176, 70 L. Ed. 368; United States v. Emory, 314 U.S. 423, 432, 62 S. Ct. 317, 86 L. Ed. 315; 44 C.J.S. Insolvency § 14e(1) (b), page 374.

The priority of the United States, under the provisions of the above statute, attaches upon the appointment of a voluntary or involuntary receiver, People of State of Ill. ex rel. Gordon v. Campbell, 329 U.S. 362, 67 S. Ct. 340, 91 L. Ed. 348, or upon the date of the debtor's assignment for the benefit of creditors, United States v. Waddill, Holland & Flinn, 323 U.S. 353, 65 S. Ct. 304, 89 L. Ed. 294; United States v. Texas, 314 U.S. 480, 62 S. Ct. 350, 86 L. Ed. 356; Price v. United States, 269 U.S. 492, 46 S. Ct. 180, 70 L. Ed. 373; In re Mitchell's Restaurant (1949), 31 Del.Ch. 121, 67 A.2d 64; Spokane Merchants' Ass'n. *476 v. State, 15 Wash. 2d 186, 130 P.2d 373; National Surety Corp. v. Sharpe, 236 N.C. 35, 72 S.E.2d 109; Bishop v. Black, 233 N.C. 333, 64 S.E.2d 167.

However, the right to priority of payment under the above statute does not give the government any lien or right that may be enforced "against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed by the collector" in accordance with the provisions of 26 U.S.C.A. § 6323 (formerly 26 U.S.C.A. § 3672).

As we construe the record before us, the debtor, Kirkman Furniture Company, conditionally parted with its title to all the real estate involved by executing a deed of trust thereon to a trustee to secure a loan of $10,000 from the North Carolina National Bank (formerly Security National Bank), which deed of trust was executed and filed of record on 26 November 1958, nearly two years prior to the appointment of the receiver in this action.

Furthermore, all the delinquent taxes now due Guilford County and the City of High Point had become a lien on the real estate of the debtor prior to the appointment of the receiver for the debtor on 13 September 1960. G.S. § 105-280; G.S. § 105-325; G.S. § 105-340. Moreover, all taxes due Guilford County and the City of High Point had accrued and constituted a lien against the real estate of the debtor herein before any notice of taxes due the United States was filed of record in Guilford County, North Carolina, except for the year 1960.

Therefore, we hold that the taxes due Guilford County and the City of High Point constitute liens superior to the deed of trust held by the bank, G.S. § 105-376, and that the lien of the bank under its deed of trust was superior to and had priority over the claims of the United States. R.S. 3466, 31 U.S.C.A. § 191; 26 U.S.C.A. § 6323; United States v. Atlantic Municipal Corp. (U.S.C.A., 5th Cir.), 212 F.2d 709; Exchange Bank & Trust Co. et al. v. Tubbs Mfg. Co. (U.S.C.A., 5th Cir.), 246 F.2d 141; Brent v. Bank of Washington, 10 Pet. 596, 9 L. Ed. 547.

The appellant is not contesting the validity of the claim to priority of the North Carolina National Bank (formerly Security National Bank) over the claims of the appellant, but does contend the judgment is erroneous in that it orders the receiver to pay the taxes due Guilford County and the City of High Point as being superior and entitled to priority over the bank's deed of trust, and, therefore, prior and entitled to be paid ahead of the bank and the tax claims of the appellant.

In the case of the United States v. Atlantic Municipal Corp., supra, the question submitted for determination on an agreed statement of facts, was whether the district court erred in holding that, a distribution of the proceeds on all property of an insolvent taxpayer corporation, the holder of a tax lien certificate issued by the County of Orange, Florida, for 1949 ad valorem taxes, which became a lien on the taxpayer's real property on 1 January 1949, was entitled to priority as against income and excess profit tax claims of the United States which became a lien on 31 May 1949 and was duly filed in the public records of Orange County, Florida, on 1 June 1949. The appellant insisted "(1) that lien for lien, the tax lien of the United States primes that of the appellee, and requires priority in payment, and (2) that if this is not so, the debtor being insolvent, Section 3466 accords priority in payment to debts due the United States for taxes." Among other things, the Court said:

"On its part, as a conclusive answer to appellant's first claim, appellee points: to the showing in the agreed statement of facts that its claim is supported by a specific and perfected lien which primes, that is, is prior in time to, the tax lien of the United States; and to the law as most recently declared in United States v. City of *477 New Britain, 347 U.S. at page 85, 74 S.Ct. at page 370 [98 L. Ed. 520] * * *. "It is also clear that appellee's second contention, that Section 3466, the debt priority statute, may not, under the agreed facts, be availed of by the United States, is equally well taken. This statute applies only as against unsecured debts, that is, debts not secured by a specific and perfected lien. It has never been, we think, it will never be, applied as it is sought to be applied here, to accord payment to a debt due the United States in preference to a claim secured by a lien which is prior in time and superior in law to the lien of the United States securing the debt for which preferential payment is sought."

Likewise, in Exchange Bank & Trust Co. et al. v. Tubbs Mfg. Co., supra, the district court granted the United States priority for taxes out of the sale of the assets of the corporation over mortgagees and claims of the City of Dallas for municipal taxes. The mortgage lien claimants and the City of Dallas appealed. The Fifth Circuit Court said: "We will content ourselves with saying that upon a consideration of the relevant facts and a review of the authorities now extant, we are of the clear opinion that the claim of the United States to priority over the mortgage lien claims is unfounded, and that, on the appeal of the mortgage lien claimants, the judgment must be reversed with directions to provide for the payment of the claim of each out of the proceeds of the property on which its lien was fixed, subject, however, to first payment thereout of the City's tax claims. * * * The judgment awarding the United States priority and directing the clerk to issue his check to it for the moneys on deposit, received from the sale of the assets of the debtor is accordingly reversed, and the cause is remanded with directions to enter judgment awarding priority to the respective mortgage claimants, subject to payment of the city's taxes due on the respective properties, and directing the clerk to issue his check to each of the claimants in payment of its debt to the extent that the funds derived from the property secured by its mortgage permit, and to issue his check to the United States for the balance remaining undistributed."

Consequently, we think the court below properly directed the receiver to pay off the tax liens held by Guilford County and the City of High Point before paying the bank the balance due on its secured loan. After the payment of these liens and the claims for wages, which claims are not contested, the appellant is entitled to have all its tax claims paid which were filed prior to the filing of the judgment in favor of Carolina Spring Corporation on 18 July 1960 if the funds in the hands of the receiver are sufficient to pay such claims. Surety Corp. v. Sharpe, supra.

The judgment entered in the Municipal Court of the City of High Point on 31 January 1961, and affirmed in the Superior Court of Guilford County, will be upheld.

Affirmed.