Smith v. Tozer — 3 N.Y. St. Rep. 363

Majority

p. 363

John M. Smith, App’lt, v. Seth A. Tozer, imp’d, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed October, 1886.)

Headnote

1. Supplementary proceedings—Receiver—Real property op judgment debtor—Code Crv. Pro., §'s 2447, 2468.

In proceedings supplementary to execution a receiver of the property of the judgment debtor was appointed, the order directing the debtor to execute and deliver to the receiver “ a proper assignment and conveyance of all his lands and real estate wherever the same are situated, and particularly ” certain lands situate in another state. This order was duly filed and recorded, and the receiver having qualified served the defendant with such order, and thereafter presented to him for execution quit-claim deeds of the lands without the state, and requested him to execute them, which he refused to do. Held, that, the power of the judge in proceedings supplementary to execution is wholly dependent upon the statute. The statute (Code Civ. Pro., § 2447) does not authorize the judge to order the application towards the payment or the delivery or transfer to the receiver for such purpose of any other than personal property. The direction in the order to assign or convey the real property without the state was not within the power of the judge. The judge may appoint a receiver in whom the property of such debtor vests by force of statute subject to certain exceptions. Code Civ. Pro., § 2468.

%. Same—Code Crv. Pro., § 2468.

All the real property vested in the receiver is that embraced within the

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exception in Code Civil Procedure, section 2468, and its situs must be in this state.

3. Same—Contempt.

The judgment debtor was not guilty of contempt in disobeying the part cf the order directing the assignment and conveyance of the lands without the state.

Appeal from order of Monroe special term denying plaintiff’s motion to direct and require the defendant to execute and deliver to the receiver conveyance of his interest in lands situate in the state of Illinois, and to punish him for contempt for disobedience of the order of the county judge of Ontario county directing him to make such conveyance.

II. M,\ Field, for.appl’t; Spencer Gooding, for resp’t.

The plaintiff recovered in an action in this court judgment against Seth A. Tozer and another defendant, upon which execution against the property of the defendants was returned -unsatisfied. Thereupon proceedings supplementary to execution were instituted before the county judge of Ontario county against the defendant Seth A. Tozer; and after his examination a receiver of his property was appointed by the order of such county judge; and by the order such defendant was directed to execute and deliver to the receiver “a proper assignment and conveyance of all his lands and real estate, wherever the same are situated, and particularly tho lands and real estate in the counties of Williamson and Platt, in the State of Illinois.”

This order was duly filed and recorded in the office of the clerk of Ontario county January 19, 1886; and the receiver having duly qualified, served the defendant with such order, and thereafter presented to him for execution quit-claim deeds of the Illinois lands in question, and requested him to execute them, to do which the defendant refused.

This motion was then, upon due notice to the latter, made and denied.

On the part of the plaintiff it is contended that the order of the county judge was an effectual requirement for the execution of a conveyance to the receiver of such lands, and that his refusal to do so charged him with contempt, and subjected him to punishment as- the consequence. No question is made as to the manner of bringing him before the court for that purpose. And it is unnecessary to .enquire whether it could be done otherwise than by an order to show cause. The question is one of power of the county judge to direct by order the execution of the conveyance to the receiver. It was within the power, of the judge, in such proceedings given by the old Code,, to order any property of the judgment debtor not exempt from

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execution to be applied toward the satisfaction of the judg-' ment (sec. 297), and to appoint a receiver with ample powers to consummate the purposes of such order (sec. 298). And it was held that those provisions made an order of the judge before whom the proceedings were had effectually operative upon the judgment debtor in respect to his lands situated outside the state. Fenner v. Sanborn, 37 Barb., 610 . In that- view the inquiry here is whether there has been any modification of the statute to deny such effect to the order in question. Those sections were repealed by Laws of 1877, chap. 417, and the Code of Civil Procedure supplies all the provisions now relating to proceedings supplementary to execution as such. The power of the judge in them is wholly dependent upon the statute.

There is no remaining provision of the statute authorizing the judge to order the application towards the payment or the delivery or transfer to the receiver for such purpose of any other than personal property of the judgment debtor. Code Civ. Pro., § 2447 The direction in the order to assign or convey the real property situated in the state of Illinois was not within the power of the judge, and therefore the judgment debtor was not in contempt. The judge may appoint a receiver, in whom the property of such debtor becomes vested by force of the statute, subject to certain exceptions. Id., 2468. The powers of the receiver are ample to reach and make available the property of the judgment debtor within the jurisdiction of the court. And there is no apparent reason why aid may not be given by the direction of the court, requiring him to transfer to the receiver any of his property outside the state which becomes vested in the receiver by virtue of his appointment. The equity power is inherent in this court, having jurisdiction of the person of a judgment debtor, to require him to transfer to the receiver any property so vested in the latter when such transfer is necessary to the appropriation by him for the purposes of the trust, although such property is beyond the jurisdiction of the court. Mitchell v. Bunch, 2 Paige, 606-615; Bailey v. Ryder, 10 N. Y., 363 ; Fenner v. Hardenburgh, 37 Barb., 610 . And for other purposes, the court having like jurisdiction of the party, has frequently exercised its power of requiring him to perform acts relating to property beyond the state when his duty to do so has been judiciafiy declared. Newton v. Bronson, 13 N. Y., 587 ; Gardner v. Ogden, 22 id., 327; Williams v. Fitzhugh, 37 id., 444; Shattuck v. Smith, 3 Edw., 152 . This court, in an action by the receiver, might require the defendant to transfer or convey' to him any property vested in him which may be- in another state, when such transfer or conveyance is necessary to its proper appropriation in the exe

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cution. of the trust. And this court may and will exercise equity powers at special term upon motions in action when the facts and circumstances are such as not to require a trial of issues in an action for the proper determination of the questions upon which the right to relief depends. Wetmore v. Law, 34 Barb., 515 -511; Hale v. Clauson, 60 N. Y., 341 .

Although this is a special proceeding it is such in the action, and ancillary to the purpose of enforcing the collection of the judgment, which is one of the purposes for which the action was brought. And the legitimate remedies attendant upon the proceeding and to render it effectual so far as the orders of the court may be required, are taken as in the action. When the receiver was appointed he became subject to the direction and control of the court.' Section 2411.

No dispute of the facts appears by the papers upon which this motion was heard. And the question presented7 is, whether the direction asked for, came within the power of the court. This, in the view taken, depends upon the right the receiver took by his appointment by force of the statute to the property in question. The «statute provides that the property of the judgment debtor is vested in the receiver from the time of filing the order appointing him, subject to the exceptions, that real property is vested in the receiver only from the time when the order or certified copy is filed with the clerk of the county where it is situated, etc. Code Civ. Pro., § 2468. The real property in Illinois cannot come within the exception, nor is any real property vested in the receiver which does not come within it, because by the terms of the section all the real property vested in the receiver is that embraced within the exception, and its situs must be in this state.

If the exception by qualification in terms had limited the real property mentioned in it to that situated in this state, the vesting provision of the section might have a broader construction, but as it is, the only real estate which the receiver is permitted to take by force of this section is that which is situated in a comity where the order may be filed. And our attention is called to no other provision of the statute enlarging the power of the receiver appointed in such proceedings in the respect in question.

The plaintiff, however, is not without remedy. The provisions taking the place of the statutory creditors bill for discovery, etc., authorized by the Revised Statutes, (part 3, chap. 15, title 2, art. 2), and somewhat enlarging them furnish. a requisite remedy (Code Civ. Pro., chap. 15, title 4, art. 1), as in such an action the court may, by judgment, appoint g, receiver, and direct the judgment debtor to convey to him, etc. Id § 1877.

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The difficulty in the way of relief by motion here is found in the qualified power of the receiver He is not vested with the real property of the debtor situate without the state, and therefore, could not by action or any proceeding in invitum acquire a conveyance from him.

The views taken lead to the conclusion that the order should be affirmed.

Smith, P. J., and Barker, J. concur.