McCool v. McNamara — 19 Abb. N. Cas. 344

Majority

p. 344

McCOOL v. McNAMARA.

N. Y. Supreme Court, First District, Chambers;

February, 1887.

Headnote

1. Appointment of receiver of rents and profits."] In an action to set asido a conveyance of land by a deed absolute in form against a subsequent grantee upon the ground that it was in fact a trust deed onty for the benefit of the grantor, a receiver of the rents and profits should not be appointed pending the action.

2. The same; presumptions in favor of parties in possession.] The presumptions aro all in favor of the party in possession, and ho ought not to be deprived of the fruits of that possession until upon trial it has been adjudged that bis title is invalid.

Motion to enjoin defendant from collecting rents, and for the appointment of a receiver of the rents and profits of the premises in controversy.

The nature of the action and the material facts are stated in the opinion.

Melville A. Kellogg, for tho plaintiff, and the motion.

James S. Byrne, for the defendant McNamara, opposed.

I do not see on what principle it can be claimed that a receiver should be appointed in this case. The action' is brought to set aside a certain conveyance of real estate, made by one Margaret McCool, now deceased, to her daughter. Mary E. McCool, afterwards Mrs. McNamara, which was subsequently conveyed by Mrs. McNamara to a third party, and by that party to her husband, it being alleged in the complaint that the deed made by Margaret McCool to her daughter was made as a trust deed only.

p. 345

Margaret McCool died January 8, 1883, and it would appear from the papers that her daughter, upon her death, took possession of the premises, and on December 31, 1885, conveyed them to Dwyer, who, on the same day, conveyed them to her husband.

The record title in the defendant McNamara is therefore complete, and the length of time which has elapsed between the death of Margaret McCool and the making of this application goes far to show that the deed referred to was not in trust, but an absolute deed. However that may bo, as I stated upon the argument, to appoint a receiver on motion would be equivalent to issuing execution before obtaining judgment. The presumptions are all in favor of the party in possession, and he ought not to be deprived of the fruits of that possession until upon trial it has been adjudged that his title is invalid. It is hardly necessary, it seems to me, to cite authorities, but the case' of Thompson v. Sherrard ( 12 Abb. Pr. 427 ), decided by the General Term of this department in September, 1861, is peculiarly in point. The court there hold that in an action to recover possession of real property and damages for the wrongful detention thereof, it is not regular or proper to appoint a receiver of the rents and profits of the property in controversy.

Motion denied, with costs.