Wilson v. Wilson — 6 Sarat. Ch. Sent. 26

Majority

p. 26

Henry P. Wilson v. Daniel Wilson et al.

A. Thosipson, for appellant;

B. W. Bonnet, for respondent.

Headnote

of as-signment to re.-ceiver appoint. suit1\lndmtl

Appeal from an order of a vice chancellor refusing to overrule a plea in a foreclosure suit as frivolous and for the usual decree pr.o confesso for want of an answer. The complainant was the assignee of a bond and mortgage given by the defendant D. Wilson who was still the owner of the equity of redemption. The defendant Nowal was made a party as a subsequent incumbrancer having a lien by j udgment. Previous to the commencement of this suit, Nowal had filed a creditors bill upon his judgment agaiust D. Wilson the mortgagor, in which suit, aftey the filing of the bill in this cause, Nowal obtained the usual order for the appointment of a receiver; and the defendant Wilson afterwards assigned all his property— including his equity of redemption in the mortgaged premises — * to the receiver. Nowal pleaded these facts in bar of the suit generally ; insisting that the receiver was a necessary party.

The chancellor held that the matter pleaded was no bar even to the further continuance of the suit — the suit which was properly commenced being neither barred or abated by the „ . 0 r „ , , ,. oi a receiver oí one oí the defendant’s pendente hte. That, at most, the matter pleaded would only render the suit defective so as to make it irregular for the complainant to proceed until the receiy

p. 27

er is brought before the court by a supplemental bill in the nature of a bill of revivor, and that the facts pleaded did not constitute the proper subject of a plea of any kind.

The chancellor also held that if the suit has become so defective that it is improper for the complainant to proceed until the receiver is brought before the court, the proper course for the defendant Nowal was to apply for an order that the complainant bring the receiver before the court, by a supplemental bill in the nature of a bill of jevivor, within a time to be fixed, or that the bill be dismissed; and that in the meantime all proceedings be stayed.

The chancellor, however, came to the conclusion that the pasties in interest are sufficiently represented to render it unnecessary to file a supplemental bill to bring the receiver before the court to make the decree binding upon him as the assignee of the equity of redemption pendente Hie.

Order appealed from reversed with costs, and plea overruled as frivolous, with costs of motion, and defendant Nowal to pay the eosts and put in his answer, on oath, within thirty days.