The opinion
Manning, J., dissenting:
I regret at all times not to be in agreement with the majority of this Court, in cases submitted for our decision; but I am constrained to dissent from the conclusion reached in the disposition of this appeal. In section 155, Vol. I, Pomeroy’s Equity Jurisprudence, the learned author says: “It is well established that where a court takes possession of the property of a party, and appoints a receiver to administer the trust for the benefit of all interested parties, the court receives such property impressed with all existing rights and equities, and the relative rank of claims and standing of liens remains unaffected by the receivership. ' Every legal and equitable lien upon the property is preserved, with the power of enforcing it. The receivership does not destroy any liens that may have been acquired before the appointment.” Applying this principle, stated with such admirable clearness, 1 think the contract between the Vermont Mills and the Cone Export and Commission Company created in the latter, upon making the advances to the former, as stipulated in paragraph 5, a right in equity against the mills, which was completed by the delivery of the baled goods, the subject of this action. ' It is admitted that the mills suspended manufacturing before the acts were done, which, in my opinion, constituted a delivery to the commission company, under the contract and before the appointment of the receiver. During this period, advances to an amount more than double the value of the particular goods having been made theretofore, an agent of the commission company visited the Vermont Mills, and in the presence of its president, of the man who was by him thought to be its secretary and had been up to three days prior thereto, and of its superintendent, made Unvoices of the bales of manufactured goods, by numbers and marks whioh had been placed thereon for the commission company, and in the presence of the president, the plaintiff Garrison, and of Durham, the supposed sec *647 retary, and without objection or protest from either, requested Coble, the superintendent, to take charge of them as agent of the commission company, and he assented to do so. There was no removal of the goods, nor in view of the above do we think removal necessary to complete delivery. The mills were shut down and suspended;, they did not again resume manufacturing, and there was no commingling of these goods with others. There was no word of objection or protest by the officers of the mills to what was said and done; it is-true, there was no positive assent. The officers saw; they heard; they were witnesses; but they stood mute.
It is admitted in the opinion of the Court that the equitable lien of the commission company would have been complete by delivery, and this principle is well established. So the decisive question is, Did the acts narrated constitute a delivery? I cannot think that a change of physical location in view of 'the actual occurrences was required to complete the equitable lien of the commission company. It was acting strictly within its rights under the -contract; the taking possession of the goods was not tortious, but under and by virtue of its contract; and the delivery by the mills was in accordance with its obligation under the contract. If a corporation makes a valid agreement to sell a horse for $150, and the other party subsequently pays the price to the treasurer of the corporation, I cannot think the law requires a meeting of its board of directors to authorize, the delivery of the horse, or that the taking possession of the horse by the purchaser in the presence of the president and without objection is an unlawful or tortious act. Nor can I see that it is material that the absolute title does not pass by the delivery, but that the delivery is for the purpose of sale and an application of the proceeds to the payment of advances made on them. My conclusion is supported by the following cases, and authorities: Kollock v. Jackson, 5 Ga., 153 ; Campbell v. Penn, 7 La., 371 ; Hamilton v. Campbell, 9 La., 531 ; Jackson v. Rutherford, 73 Ala., 155 ; Hanselt v. Harrison, 105 U. S., 401 ; Gregory v. Morris, 96 U. S., 619 ; Yealman v. Savings-Institution, 95 U. S., 764 ; Walker v. Brown, 165 U. S., 654 -In this last case the Court quotes with approval section 1235, 3 Pomeroy Equity Jurisprudence, where this doctrine is. stated: “The doctrine may be stated in its most general form that every express executory agreement in writing, whereby the contracting party sufficiently indicates an intention to make some particular property, real or personal, or fund, therein described or identified, a security for a debt or other obligation,1 or whereby 'the party promises to convey or assign, or transfer *648 the property as security, creates an equitable lieu upon the property so indicated, which is enforcible against the property in the hands, not only of the original contractor, but of his heirs, administrators, executors, voluntary assignees and purchasers or encumbrancers with notice. * * * The ultimate grounds and motives of this doctrine are explained in the preceding section, but the doctrine itself is clearly an application of the maxim, 'equity regards as done that which ought to be done.’ ”
I do not think that the principle settled in Brem v. Lockhart, 93 N. C., 191 , and the numerous decisions of the Court since approving it, is contravened, for the reason that the court, in the present case, through its officer, is administering the assets of the defendant corporation “in trust for the benefit of all its creditors, impressed with the existing rights and equities, and the relative rank of claims and standing of liens remains unaffected” ; nor is the doctrine declared in Dulce v. Markham, 105 N. C., 131 , and since then repeatedly approved, contravened; that doctrine being that the power given by a corporation to execute a mortgage on, or make other conveyance of, corporate property can only be given at a corporate meeting duly held. In this present case it is not questioned that the contract between the Vermont Mills and the commission company received proper corporate authorization. I am, therefore, of the opinion that the commission company was entitled to the proceeds of the sale of the manufactured goods, upon the facts found, and that his Honor should have so adjudged.
HoKE, J., concurs in the dissenting opinion.