Kimball v. Burrell

Headnote

Supplementary proceedings—Receiver—When and how title to real, PROPERTY VESTED IN RECEIVER.

By the provisions of Code Civil Procedure, section 2468, the real property of a judgment debtor is vested in a receiver appointed in proceedings, supplementary to execution only from the time when the order appointing him as such, or a certified copy thereof is filed with the clerk of the county where it is situated. Held, that upon such filing, the title of the debtor in the real property becomes absolutely vested in the receiver, and that no deed is necessary to perfect the title and no power given to compel one.

The defendant is the administrator of the estate of Emma L. Burrell (his .mother), deceased, and, with a brother, are her only children and heirs-at-law. He was appointed administrator about June 8, 1885. She left no property other than the house No. 58 Cheever Place, Brooklyn, worth about $5,000, upon which there is a mortgage overdue of $3,500. On the 6th of November, 1885, Charles E. Burrell obtained a judgment against defendant, as administrator, for the sum of $3,823.43, being for money loaned deceased in her life-time, and also for funeral expenses after her decease. On the 25th of May, 1887, said judgment creditor duly obtained from the surrogate of Kings county a decree that an execution issue to the sheriff of Kings county directing him to sell said premises and apply the proceeds to the payment of said judgment. To prevent the enforcement of said order an agreement was entered into between said judgment creditor and the defendant, as such administrator, that the rentals of said premises be applied to the payment of said judgment, the administrator to pay taxes, interest, insurance, repairs, etc. Kimball obtained judgment against Burrell, in the city court of New York, November 8, 1886, and filed a transcript thereof in Kings county, March 9, 1887. On June 11, 1887, in proceedings supplementary to execution in this action, an order was made by the Kings county judge appointing Bernard J. York, Esq., receiver of all the property, etc., of defendant. On the 7th day of November, 1887, an order was made by said county judge directing defendant to execute a deed of conveyance of any and all right, title and interest which he has in and to said premises, 58 Cheever Place, and that he pay costs of motion. Defendant now appeals from said order. On an order to show cause for a stay of proceedings pending this appeal, Hon. Willard Bartlett, on December 3, 1887, directed defendant to execute and deposit with the county clerk of Kings county, a deed conformable to said order, there to remain till the determination of this appeal, with a stay m the meantime.