Pate v. Hoffman

The right of the appellant to hold possession of the property upon which he had a lien was not affected by the recovery of judgment for the amount of the indebtedness to secure the payment of which he held the property as security. It had the effect of settling the amount of the defendant’s liability to the petitioner, but did not affect the lien upon the security, or his right to have the same sold and the proceeds applied to the payment of the amount due. Nor did the fact that a receiver of the debtor’s property, appointed on the application of another •creditor, was extended so that the receivership would include the judgment obtained by the petitioner, affect' the petitioner’s right to hold the security until his debt was paid. Petitioner had the right to take any proceeding to collect his judgment without xesorting to the security.

If his judgment had been collected, then he would have no further interest in the property held as security, and such property would belong to the receiver and could be applied by him to the payment of the creditor at whose instance he had been appointed, but until such judgment was paid the lien upon the property was superior to the title of the receiver.

Petitioner having failed to collect his judgment by the proceedings instituted, had then the right to resort to the property upon which he had a lien to secure the payment of the debt, and for such purpose to commence an action to have the property sold and its proceeds applied to the payment of his demand. To such an action the receiver in whom had vested the title to such property subject to the lien, was a proper party, and he should have been allowed to make the receiver a party to such an action.

We think, therefore, that the motion should have been granted.

Order appealed from reversed, with ten dollars costs and disbursements, and motion granted.

Van Brunt, P. J., and Daniels, J., concur.