La Bau v. Huetwohl — 39 N.Y. St. Rep. 854

Majority

p. 854

Richard R. La Bau et al., Resp’ts, v. Frank Huetwohl et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

Receiver-Ejectment.

The appointment of a receiver of rents and profits pendente lite is im*

p. 855

proper in an action of ejectment brought against one in possession under a contract of sale. Such, remedy is inconsistent with the nature of the action and the relief sought.

Appeal from order appointing a receiver of the rents, issues and profits of a dwelling house and lot.

Action in ejectment to recover possession of said premises. The plaintiffs are heirs and devisees of one Julia Ann Abrams, who devised said premises to plaintiffs’ mother for life, with remainder to plaintiffs. The will gave a power of sale to the executor in a certain event, to be determined by the executor and life tenant. The life tenant died without exercising the power of sale, and thereafter the executor contracted to sell the premises to defendant Huetwohl, who entered into possession under the contract, and made repairs and improvements.

Carpenter & Roderick, for app’lts; Peck & Meld, for resp’ts.

—This is an action of ejectment, and the defendant is in possession of the premises under a contract to purchase the same. He occupies a portion of the dwelling house, and has rented other portions thereof to two tenants. He has expended money in repairs and improvements upon the premises.

After this action was commenced, the plaintiffs made an application to the court for the appointment of a receiver of the rents of the property, and the motion was granted, and the defendant appealed from the order.

So far as the equities between the parties are involved, the defendant occupies the position of advantage. He made an honest contract for the purchase of the premises, and paid some money in the full belief that he could obtain a perfect title, and went into possession and made improvements under the influence of the same belief

If, therefore, he can now reimburse himself for his outlay, it is equitable and just that he should be permitted to do so by the use of the property pending the suit for its recovery.

Our decision, however, is placed upon other grounds.

The case of Thompson v. Sherrard, 35 Barb., 593 , was very similar to this. The action was ejectment for the recovery of real property; the defendant Bobert Sherrard was in the occupation of a certain portion of the house, and the other defendants occupied other portions of the house and paid rent to Sherrard.

A receiver of the rents was appointed at the special term in that case as in this, and upon appeal to the general term the order was there reversed, and the court held the appointment of a receiver to be improper, and inconsistent with the nature of the action and the relief sought

That decision was followed in the subsequent cases of Guernsey v. Powers, 9 Hun, 78 , and Burdell v. Burdell, 54 How., 91 .

The law will not take the property of a defendant from him pending an action for its recovery, and that wise and salutary rule would be violated if a receiver could be appointed to take the rents. Even in an action to foreclose a mortgage on land, a receiver is not appointed where the defendant is personally in the occupation of the premises.

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Our conclusion is, that the order should be reversed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.