Majority
p. 29FOSTER v. TOWNSHEND. Court of Appeals; January, 1877. [Overruling in part Foster v. Townshend, 12 Abb. Pr. N. S. 469.]
Headnote
Attorneys.—Real Estate.—Husband and Wire.—Receiver.— Sequestration.The remedy-for an act of an attorney or counsel, inconsistent with his relation to the court, is by a summary proceeding, and not by formal action.
A sequestrator of real estate, or receiver of rents and profits only, does not take title to the real estate, and cannot maintain an action
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to set aside a fraudulent or forbidden conveyance, if his possession is not interfered with.[2]
Such receiver is entitled to the possession and the rents and profits, but as long as there is no interference with these, he has no concern with the title to the realty, nor any interest in the determination of adverse claims.
Any proceeding to compel the application of the rents and profits, or in any way to compel payment of alimony from property sequestered for that-purpose, must be had by the party in whose interest the sequestration was ordered.
A conveyance of the legal title of real estate, either by grant or under a mortgage foreclosure, is not inconsistent with, or necessarily adverse to the possession or rights of a receiver of the rents and profits.
The remedy of a receiver of the rents and profits of sequestered real estate, against an adverse claim to such rents and profits, is by an order for an examination of the claimant, pro interesse suo, and such proceedings thereon as would lead to an adjudication of the rights of the parties.
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Appeal by defendant from a judgment of the N. Y. common pleas, affirming, with modification, a decree at special term.
John A. Foster, receiver of the real and personal estate of Thomas W. Carey, brought this action against Townshend, McMullen, and others, to set aside a deed and an assignment of a mortgage, and for an injunction, &c.
In November, 1867, Thomas W. Carey was the owner in fee of a certain vacant lot in the city of New York, together with other property. During that month his wife Mary commenced an action against him in the N. Y. common pleas, for a limited divorce, and on the 25th of the same month an order was made for payment by him of alimony for the support of herself and children. The alimony not being paid, an injunction was served on Carey on December 6, 1867, restraining him from parting with his real estate; and on the 13th of the same month an order was made under 2 R. 8 . 148, § 60, directing an attachment against him, and appointing the plaintiff receiver of Carey’s real and personal property, to hold it until he should give security for the payment of the alimony.
The provision of the statute under Avhich the order was made ( 2 R. 8 . 148, § 60, 6th ed. vol. 3, p. 159) is as follows:
£A§ 60. Whenever the court shall make an order or a decree, requiring a husband to provide for the mainten
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anee oí Ms cMldren, or for an allowance to Ms wife, the court may require such husband to give reasonable security for such maintenance and allowance ; and upon the neglect or refusal of the defendant to give such security, or upon the default of Mm and his surety to provide such maintenance and allowance, the court may sequester his personal estate, and the rents and profits of his real estate, and may appoint a receiver thereof, and cause such personal estate, and the rents and profits of such real estate, to be applied towards such maintenance and allowance, as to the court shall, from time to time seem just and reasonable.”
On December 18, 1868, Carey conveyed the lot above mentioned, to John Whyte for $4,000, subject to a mortgage to one Azel Graham for $1,500 ; and Whyte at the same time executed a mortgage upon the lot to Carey for the sum of $1,000 and interest, that being regarded as equivalent to the value of Carey’s wife’s right of dower in the land, which mortgage was made payable upon her death, or upon the release of her . dower right; and Carey afterwards assigned this mortgage to Townshend, his lawyer, for the nominal consideration of one dollar, which assignment purported to have been made to secure moneys advanced and to be advanced by Townshend to Carey, and for legal services rendered and to be rendered by him to Carey. It was to set aside these transfers that the action was brought.
A demurrer to the complaint was overruled (12 Abb. Pr. Pf. 8. 469), and defendants answered.
The cause was tried by the court at special term.
The judge at special term found that this deed to Whyte, and assignment to Townshend, were made to hinder and defraud the wife in the enforcemént of her rights in the divorce suit, and decreed that they were void as against the receiver, and the executors of John Whyte were directed to give the receiver a dee.d releas
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ing the property, and Townshend was directed to discharge the mortgage and enjoined from assigning or foreclosing the mortgage.
On appeal to the general term this decree was modified by not requiring a reconveyance by Whyte’s executors. The following opinion was rendered on the appeal.
Daly, Ch. J.[2] —[After stating the receiver’s appointment and the statute above given.]—This statutory provision is, in effect, the same power which courts of equity previously exercised in sequestrating personal and real estate,[3] to enforce performance of their orders and decrees; and in the disposition of the questions raised in this case, it will be necessary first to understand what was the operation and effect of a sequestration of a defendant’s personal and real property in equity. It was a seizing and taking hold of the' property, real or personal, or both, by sequestrators appointed by the court, and holding it until he performed the act directed to be done. It was in equity very nearly what the writ of levari facias was at common law; the goods and chattels were taken into-possession, and with the permission of the court might be sold, and the lands were seized and held, the rents and profits being collected by the sequestrators, and applied or allowed to accumulate, or were otherwise disposed of, as the court might direct (Att’y Gen. v. Coventry, 1 P. Wms. 307; Bligh v. Darnley, 2 Id. 621; Wharan v. Broughton, 1 Ves. Sr. 180, 184 ; Desbrow v. Crommie, Bunbury, 272; Shaw v. Wright, 3 Ves. 22, 23; Mitchell v. Draper, 9 Id. 208; White v. Geraerdt, 1 Edw. Ch. 336 , 340, 341; Daniel’s Chancery Pr. 1254-1276 ; 2 Tidd’s Pr. 993, 1042, 9th Lond. Ed.). In respect to the real estate, the right extended:
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only to the possession, to the sequestering or receiving of the rents and profits ; to the making of leases, &c., &c., the legal estate, in the language of Lord Chancellor Cowper, “remaining, in every respect, as before” (Att’y Gen. v. Coventry, 1 P. Wms. 307). Lord Hardwicke said, in Hyde v. Greenhill, 1 Dick. 107, that a sequestration covered the personal estate and the rents and profits of the real estate, tut not the land; showing that the court, under a sequestration, never assumed the power of disposing of the land, which further appears from Sutton v. Stone, 1 Dick. 107, in which an application was made to sell a leasehold estate which had been sequestrated; and Lord Loughborough held that it could not be done. “Who,” said he, “is to make out the title.” [The learned chief judge here recited the facts as to the conveyances above stated, and proceeded as follows:]
The judge was fully warranted in finding, upon the evidence, that the conveyance of the lot by Carey to Whyte, and the mortgage by Carey to Townshend, were made with this [fraudulent] intent. Whyte knew of the injunction, and of the appointment of the receiver. He discussed both matters in the presence of the witness, Henry W. Carey. He was an intimate friend of Carey’s, and co-operated with him in getting Carey’s stock of goods removed from the latter’s store in the city, to his, Whyte’s store, in Jersey City. Townshend was Carey’s lawyer in the divorce suit, and prepared both the deed and the mortgage. He admitted, when examined, that he knew that Carey was enjoined by the court from transferring any of his property. He was asked why he allowed his client, under such circumstances, to make a conveyance of his property, and he answered that he considered that Carey had the legal right then to convey it, if he chose to take the chances of the punishment that the court might inflict upon him for a disobedience of the injunction.
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That he took the mortgage without any consideration whether it was right or wrong. That Carey, who was in want of money, solicited him to take it. That if it was illegal he was sorry for it, but he supposed then, and still supposed, that Carey has a right to dispose of his property and take the consequences. It further appears that Carey assigned to Townshend the lease of his store in this city. That he gave Townshend’s wife a mortgage upon real estate which he had in Allegheny county, which mortgage Townshend foreclosed, and that Townshend brought a suit for the foreclosure of the mortgage assigned to him by Carey, which suit was still pending. So that it would seem that all Carey’s property was transferred to Townshend, Townshend’ s wife, and to Whyte. These being the facts, there can be no reasonable doubt upon the evidence that the conveyance of this lot to Whyte, and the mortgage upon it to Townshend, were made with the intent, upon the part of Carey, Townshend and Whyte, of preventing the order for alimony and maintenance being enforced by the sequestration of this part of Carey’s real property.
The judge has found that the plaintiff, upon being appointed receiver, became vested with the real and personal estate of Carey in trust for securing the payment of the alimony, so far as the court has power to sequestrate his property for the satisfaction of the alimony, and that the plaintiff had the power to collect the rents, issues, and profits of the premises, as far as might be necessary for the enforcement of equitable rights of the wife.
This was not finding that the legal estate was in the plaintiff, as the appellants have argued, but simply that he became vested by his appointment with the right to the immediate possession, and, as incident to it, the right to the rents and profits, and the right to lease the property, with the permission ■ of the court,
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that it might yield rente and profits to be applied to the payment of the alimony and the maintenance (Neale v. B ealing, 3 Swanst. 304 n. c; Harvey v. Harvey, 3 Ch. R. 49 [*87]; Morris v. Elme, 1 Ves. Jr. 139; Wynne v. Lord Newborough, Id. 165; Jeremy's Eq. Jurisd. 252, 253 ; Story's Eq. Juris. 833, 833 a).
The plaintiff being in possession of the real estate by the sequestration of it, his possession could not be disturbed without the leave of the court; for his possession is the possession of the court (Angel v. Smith, 9 Ves. 336, 338; Lord Pelham v. Duchess of Newcastle, 3 Swans. 289, 293 n.; Sea Ins. Co. v. Stebbins, 8 Paige, 565; Story's Eq. Juris. 833 a; Daniel's Chan. Pr. 1267 ; 2 Eng. Ed. p. 1579, 4th ed.). A fraudulent alienation of the property can have no effect upon a sequestration ; and this applies even to a voluntary conveyance, executed before the sequestration, for the purpose of defeating it (Colston v. Gardner, 2 Ch. Cas. 43; 3 Swans. 279, note a; Cook v. Cook, Comyn, 712; Marquess of Caermarthen v. Hawson, 3 Swans. 294 n. ; Witham v. Bland, Id. 277, note a; Bird v. Littlehales, Id. 299, note a.; Hamblyn v. Ley, Id. 301; note a). And it .is said that where the purchase is made after the decree, it will not affect the sequestration, although the purchaser had no notice of the decree (Snelling v. Squib, 2 Ch. Cas. 47; Cook v. Cook, Comyn, 712). It will not affect yalid rights previously acquired, and even a conveyance to an innocent purchaser for value, made afterward, will be protected, and when any right or title is claimed adverse to the sequestration, the practice is for the claimant to come into the court, and be examined pro interesse suo, and if it appear to the satisfaction of .the court, that the claimant has a superior right or title, the sequestration will be discharged as against" him (Att’y Gen. v. Coventry, 1 P. Wms. 306, 309, note 1; Wharam v. Broughton, 1 Ves. Sen. 180; Daniel's Ch.
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Pr. 1269, 1270, 1271); and though it was formally questioned (Kaye v. Cunningham, 5 Mad. 406) it appears now to be settled, that the party for whose benefit the sequestration has been ordered, may require the party claiming an adverse right or title, to come in and show cause why he should not be examined pro inter esse suo (Johnes v. Claughton, Jac. 573; Brooks v. Greathed, 1 Jac. & W. 178; Hamlyn v. Lee, Seton on Decrees, 413 [p. 1220, 3rd ed.] ; Daniel’s Ch. Pr. 1270, 1271). But though the court will interpose to prevent any disturbance of its receiver or sequestrator in his possession under the order for a sequestration, it generally refuses to interfere against the legal title (Tyson v. Fairclough, 2 Sim. & S. 142; Jeremy’s Eq. Juris. 252); and when applied to, will either examine the title itself and discharge the sequestration as against'it, or will leave the party claiming a right to the possession under a superior legal title to enforce his right at law. Angel v. Smith, 9 Ves. 336, 338; Dixon v. Smith, 1 Swans. 457; Att’y Gen. v. Coventry, 1 P. Wms. 306; Empringham v. Short, 3 Hare, 461; Gilb. For. Rom. 81.
The judge further held that the plaintiff, as receiver, was entitled to a decree adjudging the conveyance front Carey to Whyte, and the mortgage and the assignment of it to be void, and directed that they should be surrendered and cancelled. This the court has no power to do. I am not aware that in any case a court of equity has ever assumed to dispose of the real estate to enforce a compliance with its decree by a sequestration. The cases cited show that in England the court has never gone farther than to take possession of the real estate, that the rents and profits might be applied under the decree ; but whether any court of equity has or not, it is very clear that it cannot be done under our Revised Statutes, in a case like the present, the statute giving the right only to sequester the rents and profits,.
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This in no way affects the legal title or the transfer of it. It gives, by the sequestration, a right to the possession, and this being, as I understand, a vacant lot, the plaintiff, as receiver, has the constructive possession of it. The conveyance to Whyte in no way affected the plaintiff’s right to the possession. He could have applied to the court for liberty to lease the lot, that it might yield rents and profits. And if Whyte, or his grantees or heirs, assumed in any way, by virtue of the conveyance, to interfere with or disturb the plaintiff’s right of possession, or any of the rights accompanying it, the court would interpose and enjoin him or them from doing so, and might proceed against them as for a contempt (Angel v. Smith, 9 Ves. 336, 338). Though the conveyance was of no effect as against the seques-: tration, it was good, and passed the legal title as between Carey and Whyte. Courts of equity order conveyances to be surrendered up and cancelled as between the parties to them, where the conveyance has been obtained by a fraud practiced by the one party upon the other. But where the grantor and the grantee are co-operating parties in a fraud, the conveyance having been executed and delivered with the fraudulent intent of defeating third parties, such as creditors or others, of their just rights or remedies, the rule is otherwise. In such a case, and it is this case, the conveyance is good between the parties to it. The rule is thus stated by Stoby : “Although voluntary conveyances are or may be void as to existing creditors, they are perfect and effectual as between the parties, and cannot be set aside by the grantor, if he should become dissatisfied with the transaction. It is his own folly to have made such a conveyance. They are -not only valid as to the grantor, but also as to his heirs, and all other persons claiming under him in privity of estate with notice of the fraud. A conveyance of this sort (it has been said, with great truth and force) is void only as
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against creditors, and then only to the extent in which it may be necessary to deal with the conveyed estate for their satisfaction. To this extent, and to this only, it is treated as if it had not been made. To every other purpose it is good. Satisfy the creditor, and the conveyance stands” (Story’s Eq. Juris. § 371); and courts of equity, moreover, where they do interfere and direct a conveyance or other instrument to be cancelled, do so upon such terms as may be equitable and just; such as the party returning what he has received, or making adequate compensation where it is equitable ; or where they release against usurious contracts, or instruments tainted with usury, by requiring the borrower to pay what is really due, for unless his complaint contains that offer, it will be dismissed; and where both parties are in pari delicto, as in this conveyance by Carey to Whyte, they do not interfere, but leave both parties in the position in which they have voluntarily placed themselves (Story’s Eq. Juris. §§ 300-303, 692-703).
But a very different result is produced in this case by directing the conveyance and assignment to be delivered up and cancelled.' For all that appears, Whyte may have paid the full consideration of the property. It purports to have been conveyed for the sum of four thousand dollars, subject to a mortgage of one thousand five hundred dollars, and, for all that appears, Whyte may have paid the amount, less the one. thousand five hundred- dollars mortgage, and the one thousand dollars, the estimated value of the wife’s dower interest. Now what becomes of this payment? Is the loss to be imposed upon the one wrongdoer, and the other to' have the benefit of it: especially where it is unnecessary ; for this conveyance may have been fraudulent as against creditors, and fraudulent as against the wife’s equitable rights in the action for the divorce ; but as respects her it could in
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no way affect her rights in that action; for Whyte’s legatees, or the assignees of the mortgage made by him, can acquire no enjoyment of the property conveyed by Carey to Whyte without coming into the court that ordered the sequestration, and obtaining, if entitled to it, the possession and enjoyment by the authority and permission of the court (Angel v. Smith, 9 Ves. 336, 338 ; Cook v. Cook, Comy. 712). Nor does it affect the question that Carey was under injunction, when the conveyance was made, and Whyte knew it: Carey is liable to punishment for disobeying the injunction; but that would not, as between Carey and Whyte, affect the validity of the transfer. It would not, as between them, make the conveyance illegal and void.
The sequestration, moreover, in certain cases, does not merely abate, but falls altogether, when the defendant dies, the process being generally personal; and when decree, as in this case, is for the payment of a personal demand, which does not arise out of covenants or some duty connected with the land, it can be revived only against the personal representatives, and not agains t the heir (Daniel's Chan.Pr.1274, and cases cited therein). It would therefore be a question in this case whether it would not faE altogether as respects the land by the death of the defendant, for, as Lord Hardwicke said, it does not cover the land ; and it certainly would, as to the aEmony, by the death of the wife, or as to the maintenance, upon the children arriving at their majority; and the legal title being in the legatees of Whyte, they would then be entitled to the possession and Townshend would then be entitled to foreclose his mortgage, for then there would be nothing to obstruct it.
The act of 1858, c. 314, empowers a receiver for the benefit of creditors or others interested in the estate or property held by the receiver in trust, to disaffirm, treat as void, and resist aE acts done, transfers or agreements
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made in fraud of the rights of any creditor, including themselYes and others interested in the estate or property held in trust. Under this act, and, indeed, before it, by the authority of the cases I have cited, the plaintiff, as receiver, had the right to compel Townshend, and the executots and legatees of Whyte, to come into the court, that the conveyance, the mortgage, and the assignment of it, should be declared void and of no effect as against the sequestration ; but to order the conveyance to be surrendered up and cancelled, is to declare that as between Carey and Whyte it is illegal and void, which was not necessary to protect and enforce the wife’s equitable rights, and which, moreover, the court had no authority to do under this provision of the Revised Statutes, and which, so' far as I can ascertain, has never been done by courts of equity upon the sequestration of real estate for the enforcement of their decree. If the conveyance of the legal estate was good as between Carey and Whyte, then the mortgage from Whyte to Carey was equally as good, as well as the assignment of it to Townshend.
The attempt of Townshend to foreclose the mortgage is quite another matter. That he cannot do without the permission of the court by whom the order for the sequestration was made. Lord Eldon in Anon. (6 Ves. 287), said that where there was a sequestration, no person would be permitted to bring an ejectment, or talce any other proceeding, without the leave of the court, and that whoever did so, would be guilty of a contempt; and again, in Angel v: Smith (9 Ves. 335), that it was a contempt of the court to disturb sequestration ; that a party, even by an adverse title, could not claim in any other way than by coining to be examined pro inter esse suo ; that where the sequestrator is in possession under the process of the court, his possession cannot be disturbed without leave of the court; that his possession is the possession of the
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court; that the court will not permit itself to be made a suitor in a court of law, being itself competent to pass upon the rights of the claimant; and that were it otherwise it would be putting it in the power of the party against whom the sequestration was ordered, to harass the sequestrator, so as to make it impossible for the court to execute its duty, which is illustrated in the present case by the assignment by Carey, in violation of the injunction, to his lawyer Townshend, who knew of the injunction, and by the attempt of Townshend to get . the property, by the foreclosure of the mortgage, for the non-payment of interest, or whatever advantage to him and detriment to the receiver might arise from the foreclosure of the mortgage, and the sale of the property under the foreclosure.
In my opinion the decree should have gone no further than to declare the conveyance void and of no effect as against the sequestration, and the plaintiff’s right as an officer of the court under it, and the enjoining of Townshend from foreclosing the mortgage whilst the property was sequestrated for the enforcement of the order for the payment of the alimony, and for the maintenance of the children, and upon the appeal the decree, in my opinion, should be so modified.
The judgment, however, as entered on the determination of the appeal did not materially modify the judgment below, except by omitting the direction requiring the executors of Whyte to release or re-convey; and, like the judgment appealed from, it included a direction that the defendant Townshend execute an instrument authorizing the satisfaction of the mortgage; and also enjoined him from assigning or enforcing the mortgage without leave of court. It also awarded costs against him.
From these provisions of . the judgment the defendant Townshend appealed.
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John Townshend, appellant in person,—Cited as to the immateriality of the intention or motive in the minds of the parties making the deed and mortgage: Stevenson v. Newnham, 13 C. B. 285 , 297; Clinton v. Myers, 46 N. Y. 520 : Covanhovan v. Hart, 21 Penn. St. 501 ; Cramer v. Benton, 4 Lans. 290 ; 14 Alb. L. J. 61; Seymour v. Wilson, 14 N. Y. 567 ; Griffin v. Marquardt, 21 Id. 112. As to attempt to foreclose the mortgage: Merchants’ Bank v. Thompson, 55 Id. 7; Rathbone v. Rooney, 58 Id. 467; Lewis v. Smith, 11 Id. 502. As to plaintiff’s not being entitled to costs: Johnson v. Martin, 1 N. Y. Sup'm. Ct. (T. & C.) 504. As to plaintiff’s want of title and not having a right to maintain the action: 2 R. S. 148, § 60; Chautauqua Co. B’k v. Risley, 19 N. Y. 370 ; Kerr on Receivers, 242; 2 Dan. Ch. Pr. [4 Am. Ed.] 1765.
Charles E. Whitehead, for respondent.
If the appellant is in contempt for a violation of the injunction granted in the original action of Mary Carey against Thomas W. Carey, or for any act inconsistent with his relation to the court as one of its attorneys and counsellors, and suitors have sustained damage, the remedy, as well as the punishment, must be by summary proceedings, and not by formal action, and the plaintiff can take nothing in the present action by reason of the alleged contempt of the court and its orders,' by the parties. The plaintiff’s title is in virtue of the order of the thirteenth of December 1867, which was affirmed upon appeal to the general term of the court, the validity and regularity of which cannot be questioned in this action.
The order was intended and in substance was a sequestration of the personal estate, and of the rents and profits of the real estate of the defendant Thomas W. Carey, at the instance of, and for the benefit of his wife, suing for a limited divorce, and to complete the
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payment of, or security for the payment of the alimony ordered by the court, as authorized by 2 R. S. 148, § 160. The title to the realty did not vest in the plaintiff, as receiver of the rents and profits. He was entitled to possession as against the defendant in the action and all claiming under him, but his possession was the possession of the court; and his powers were limited to such acts as should be specially authorized by the court. He could neither bring nor defend actions, lease the property, nor make any contract concerning it, nor dispose of any funds or moneys, that that might come to his hands, except by permission, and the direct authority of the court by which he was appointed. 2 Story's Eq. Jur. §§ 833; Parker v. Browning, 8 Paige, 388. He might-, by leave of the court, take proceedings to compel the surrender of the possession to him, either against the original defendant, or against a stranger claiming the possession adversely to him; but his right under the statute and the order constituting the receivership being confined to the possession of the property, and the rents and profits, so long as his rights thus limited were unquestioned, and there was no interference with him in the exercise of his powers either actual or threatened he had no concern with the title to the realty or interest in the determination of adverse claims, if any such there were.
There is no claim or pretense that the appellant has made any claim or asserted any title adverse to the rights of the plaintiff as receiver, or that his mortgage is an obstruction to the performance of his duties, or the exercise of his powers as receiver of the rents and profits of the mortgaged premises.
It would seem, that any proceedings to compel the application of the rents and profits, or in any way to compel the payment of the alimony from the property must be had by the party in whose
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interest the sequestration was ordered, and the receiver appointed.
This action appears to have been without object, and certainly has been without fruit, to the plaintiff. He had no title in respect to which the appellants’ mortgage was adverse, or upon which it was a claim affecting its value. When it shall be sought to enforce any judgment, or claim, against the corpus of the property and to compel the payment or such judgment or claim thereout, the validity of this mortgage held by the appellant may be questioned, or if the appellant shall seek by virtue of his mortgage to oust the plaintiff of his possession or obstruct him in the collection of the rents and profits, he will have his proper remedy, either by action or by summary proceedings in the original action.
The sequestration was not, and could not be affected, nor the title of the plaintiff as receiver impaired, by any act or deed of the owner of the property, after the sequestration and the appointment of the receiver.
The mortgage to Carey, the owner, given for a part of the purchase money, upon the conveyance to Whyte, was in the hands of the mortgagee, necessarily, subject to all the equities of the plaintiff in the original action, and the rights of the receiver therein, and he could make no better title to a purchaser or assignee, than he had. The appellant took, and now holds the mortgage, subject to all such equities, and any purchaser from him will take no better title than he has.
This is the rule affecting all negotiable instruments and choses in action. If the plaintiff had an interest, which could be prejudiced by the existence of the mortgage, it would be unnecessary to restrain or forbid an assignment, for his rights would be the same against any assignee as against the appellant.
So too, there was no occasion for an injunction against a foreclosure of the mortgage.
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A foreclosure without making the plaintiff a party will not affect him or his title, or possession, or right of possession, and if he is made a party, as can only be done by the leave of the court, he will be permitted to make out a defense that is open to him, and the same objections now taken to the mortgage can then be made.
A mere conveyance of the legal title, either by sale or under a mortgage, and a foreclosure and sale, is not inconsistent with or necessarily adverse to the possession of the plaintiff, or his rights as receiver.
The plaintiff did not make a case entitling him to the relief granted against the appellant, and upon the trial he asked no other or different relief, and has not appealed from the judgment given. Had the appellant asserted an adverse claim to the rents and profits of the real estate, which were the subjects of the sequestration, the complainant in the action would have had a remedy, by an order for an examination of the claimant, pro interesse suo, and such proceedings therein as would lead to an' adjudication of the rights of the parties (1 Barb. Ch. Pr. 73, citing Bird v. Littlehales, 3 Swans. 299, 300, n. a; Hamlyn v. Ley, Seaton on Decrees, 413 [1220] ; Johnes v. Claughton, Jac. 573 ; Hunt v. Priest, 2 Dick. 540).
A formal action would not have been necessary in such case, and this action at the suit of the receiver cannot be maintained.
The judgment must be reversed, and the complaint dismissed as to the appellant.
All concur, Millek, J., not voting.
Cases cited
- White v. Geraerdt 1 Edw. Ch. 336 at 340, 341 p. 33
- Seymour v. Wilson 14 N. Y. 567 p. 43