Green v. Winter — 1 Johns. Ch. 60

Majority

p. 60

Green and others against Winter.

June 20th.

Headnote

Where a trustee was restrained, by injunction, from interfering with the trust estate, and a receiver appointed by the court, and it became necessary to bring suits at law, to recover the possession of lands, and collect moneys belonging to the trust estate ; the court, on application of the cesluy que trusli ordered the receiver to bring the suits in the name of the trustee, on giving security to indemnify the trustee, on account of such suits; and that the receiver should hold the possession of the lands recovered, and moneys received by him, subject to the further order of the court.

THE petition, in this case, stated, that the defendant, in 1809, contracted to sell to Jacob Muller 50 acres in lot No. 45, in Cosby’s manor, (held by defendant in trust for plaintiffs, see S. C., ante, p. 26—44.,) for 750 dollars, with interest, payable in seven annual instalments, the whole of which, with the interest, except for one year, remained unpaid ; that G. W. Murray was appointed, by this court, a receiver of all moneys due to the trust estate, in trust for the plaintiffs. Muller was wholly unable to perform his contract, and had assigned it to one Finster, who was able, but refused to pay : that an injunction was issued, in January, 1813, prohibiting the defendant from interfering with the trust estate, or receiving any moneys thereon, of which personal notice was given to Fins ter, and public notice thereof given in the TJtica Gazette ; that there is no way of enforcing the payment of the money due on the contract, hut by an action of ejectment; that the declaration of trust, executed by the defendant, provided, that if he should become incapable of executing the trust, the same should be vested in Richard Platt or his assigns ; that the defendant is now confined on execution, and Platt has assigned over the trust to George W. Murray; that many parts of the trust estate are in possession of mere occupants, and adverse

p. 61

claimants ; and some of the tenants of the defendant hold °ver.

The plaintiffs prayed that Murray might be authorized to commence actions of ejectment on the title of the defendant, _ as trustee, to recover the trust estate, in the cases mentioned, and to recover the lot sold to Multer, unless he, or those claiming under him, should, within a limited time, pay the amount due on the contract, and give a mortgage for the residue; and that, on such payment, Murray should be authorized to give a deed.

Pendleton, for the plaintiffs.

Harison and Baldwin, contra.

Some person ought to be authorized to act in this case, for the security and benefit of the trust. The defendant cannot act; for if the trust has not passed into the hands of Murray, yet the injunction restrains the defendant from acting; and the special order of the court seems requisite, to authorize Murray, in the character of receiver, to institute actions of ejectment. (3 Bro. C. C. 88, 1 Vesey, jun. 164.)

No injury can arise to the defendant in granting the application, since Murray will be required to give security to indemnify the defendant, on account of any suit which he may institute in his name ; for that is the course in such cases ; (2 Atk. 213.;) and he will have the possession of the lands to be recovered, as well as the moneys he may receive, in the case of Multer, subject to the further order of the court. ■ On these terms, the motion is granted.

Motion granted.