of his office and take control of the debtor's assets he must give bond as required.' When he has done so it has been held that the court has power to compel the debtor to convey to the receiver all the real estate owned by him situated without the state, as well as personal property. When property of the judgment debtor is in the hands of a third person, under a valid transfer, or where the debtor has placed on such property a bona fide lien or incumbrance, the receiver's possession is subject thereto, or in other words, as to such property the receiver succeeds to such rights only in such property as the judgment debtor had at the date of his appointment. If the receiver desires to attack the title to property held by a third person he must bring an action for that purpose, making defendants to such action such persons as claim to have an interest therein. There are certain interests of the judgment debtor in property that he may have in his possession at the time of the receiver's appointment that do not vest in the receiver, such as property in which the debtor has the mere naked possession,' or where he holds it as trustee, or which is exempt from levy and sale,' or after-acquired property of the debtor. Under the general rule the receiver's title relates back to the date of his appointment, and the same rule applied

Theatre, 7 Rep. 594 [1894] 3 Ch. 338, 63 L. J. Ch. 775, 71 L. T. 8.

1 Voorhees v. Seymour, 26 Barb. 569; Banks v. Potter, 21 How. Pr. 469; Conger v. Sands, 19 How. Pr. 8.

2 Chautauque County Bank v. Risley, 19 N. Y. 369; Bunn v. Fonda, 2 N.Y. Code Rep. 70; cf. Steele v. Sturges, 5 Abb. Pr. 442; but see contra, Amy v. Manning, 149 Mass. 487, as to choses in action in a foreign jurisdiction. It is also held that neither in England nor in Massachusetts is it within the general powers of a court of equity to compel an assignment of the debtor's property or his choses in action.

Voorhees v. Seymour, 26 Barb. 585; Gardner v. Smith, 29 Barb. 68. If a mortgagee is rightfully in the possession of mortgaged chattels the re

ceiver succeeds only to the right of redemption and not the right of possession. Campbell v. Fish, 8 Daly, 162.

4Wright v. Nostrand, 94 N. Y. 31. Gardner v. Smith, 29 Barb. 68.

Hancock v. Sears, 93 N. Y. 79; Finnin v. Malloy, 1 Jones & S. 382; Cooney v. Cooney, 65 Barb. 524; Tillotson v. Wolcott, 48 N. Y. 188; Campbell v. Foster, 35 N. Y. 361; Graff v. Bonnett, 31 N. Y. 9; Scott v. Nevins, 6 Duer, 672; Underwood v. Sutcliffe, 77 N. Y. 58.

Graff v. Bonnett, 25 How. Pr. 470; Genet v. Foster, 18 How. Pr. 50; Merritt v. Sawyer, 6 Thomp. & C. 160. Nor to the wages of the debtor for personal services, Howell v. McDowell, 47 N. J. L. 359.

to the former code in New York,' though under the present code his title dates from the time of the service of the warrant or order, though there are decisions holding that his title relates back to the date when proceedings were begun resulting in his appointment. Under the codes of procedure as a rule the receiver is authorized to sue in his own name in all actions where he is authorized to sue. As a general rule in this class of receiverships it may be stated that he takes the property and effects of the judgment debtor as he finds it subject to all rights therein and incumbrances thereon in favor of third parties, and his rights and powers are measured and determined by the rights and powers of the judgment debtor had no receiver been appointed, subject, however, to the exception that a receiver may avoid the frauds of the debtor which the latter could not do, but in doing so the receiver is the representative of the creditor and not the debtor.*

§ 155. Receiver's functions in supplementary proceedings. The functions of a receiver in supplementary proceedings, except where regulated by statute, are not materially different from his functions in other proceedings of a general nature, and his duties are, in general, fixed by the order of appointment, the scope of the order, of course, being determined by the character of property over which the receivership extends. It is to be observed, however, that in this class of proceedings the receiver occupies the position of a trustee for the creditors in whose

1 Banks v. Potter, 21 How. Pr. 469; Becker v. Torrance, 31 N. Y. 631; Fillmore v. Horton, 31 How. Pr. 424; Lottimore v. Lord, 4 E. D. Smith, 183. 2 Coleman v. Roff, 45 N. J. L. 7; Clark v. Gilbert, 10 Daly, 316.

3 Seymour v. Wilson, 15 How. Pr. 355, reversing 16 Barb. 294; Bostwick v. Menck, 40 N. Y. 383; Porter v. Williams, 9 N. Y. 142.

4 A receiver, appointed in supplementary proceedings, takes only an equitable right of redemption in chattels mortgaged by the judgment debtor and reduced to possession by the mortgagee before proceedings be

gun, and cannot maintain replevin for such chattels against the mortgagee. Campbell v. Fish, 8 Daly, 162.

A receiver appointed in aid of execution may maintain a bill of discovery and clear the debtor's property from fraudulent liens. Bergen v. Littell, 41 N. J. Eq. 18.

In an action by a receiver of a judgment debtor, appointed in supplementary proceedings to set aside a conveyance by the judgment debtor as being in fraud of creditors, the judgment debtor is a proper party. Allison v. Weller, 6 Thomp. & C. 291.

behalf he is appointed, and not that of agent or representative of the debtor. He succeeds to the rights of such creditors, and by reason of his trust relationship is entitled to enforce these rights to the extent necessary to satisfy the creditor's claims, the measure of his power being fixed by that of the creditors he represents. He becomes vested by his appointment with the legal title of the debtor to all property owned by him at that time, whether in the actual possession of the debtor, or in the possession of any one for his own use, and the receiver may reduce such property to his possession irrespective of the amount due the creditors he represents. As to property of the debtor which has been conveyed by him the vendee has a right to retain possession until the superior right of the creditors to divest him is shown, and in such case it sometimes happens that one or more of the creditors represented by the receiver has estopped himself from questioning the validity of the transfer, in which case the receiver's right of recovery is confined to those creditors not estopped.' The receiver may institute actions to set aside fraudulent transfers of the debtor in behalf of the creditors, and apply the proceeds derived therefrom."

1 Bostwick v. Menck, 40 N. Y. 383; Mandeville v. Avery, 124 N. Y. 376, reversing 57 Hun, 78; Haynes v. Brooks, 116 N. Y. 487; Wright v. Nostrand, 94 N. Y. 31; Van Alstyne v. Cook, 25 N.Y. 489; Becker v. Torrance, 31 N. Y. 631; Porter v. Williams, 9 N. Y. 142; Metcalf v. Del Valle, 64 Hun, 245, affirmed in 137 N. Y. 545; Pettibone v. Drakeford, 37 Hun, 628; Salter v. Bowe, 32 Hun, 236 (as to amount recoverable); Manley v. Rassiga, 13 Hun, 288; Mandeville v. Avery, 20 N. Y. S. R. 801; Lore v. Dierkes, 16 Abb. N. C. 47; Mann v. Pentz, 2 Sandf. Ch. 257; Re Stewart's Estate, 8 N.Y. Civ. Proc. 354; Olney v. Tanner, 10 Fed. Rep. 101, affirmed in 18 Fed. Rep. 636.

Mandeville v. Avery, 124 N. Y. 376; Pittsburg Carbon Co. v. McMillan, 119 N. Y. 46, 7 L. R. A. 46; Wright v. Nostrand, 94 N. Y. 31; Porter v.

Williams, 9 N. Y. 142; Mandeville v. Avery, 20 N. Y. S. R. 801; Swartout v. Schwerter, 5 Redf. 497; Hill v. Western & A. R. Co. 86 Ga. 284 (see stat.); Prescott v. Pfeiffer, 57 Mich. 21; Walsh v. Byrnes, 39 Minn. 527; Chamberlain v, O'Brien, 46 Minn. 80 (see stat.); Merrill v. Ressler, 37 Minn. 82 (see stat.); Hamlin v. Wright, 23 Wis. 491; cf. Loos v. Wilkinson, 110 N. Y. 195, 1 L. R. A. 250; Murtha v. Curley, 90 N. Y. 372; Adsit v. Butler, 87 N. Y. 585; Davenport v. McChesney, 86 N. Y. 242; Underwood v. Sutcliffe, 77 N. Y. 58; Bostwick v. Menck, 40 N. Y. 383; Lawrence v. Bank of the Republic, 35 N. Y. 320; Campbell v. Erie R. Co. 46 Barb. 540; Storm v. Waddell, 2 Sandf. Ch. 494. In Higgins v. Gillesheiner, 26 N. J. Eq. 308, the court held that the receiver has no such power in the absence of a statute.

156. Right to sue and be sued.

As to the right of the receiver to sue, and be sued,, and the various limitations and restrictions thereof, as well as the protection thrown around him in his possession, under this class of proceedings there is no distinction from the ordinary rules applicable to receiverships in general, and his liabilities and duties to the court, and those whose interests he represents, are the same in all cases, he being regarded as a trustee of an express trust, and the property in his possession being in custodia legis. The right of the receiver to sue has been fully treated heretofore, and it is only necessary to remark generally in this connection concerning the receiver's right to sue, in this class of actions, is unquestioned, where the debtor has fraudulently conveyed or assigned his property,' and so with regard to the fraudulent and illegal acts of an insolvent corporation,' but under the modern supplementary proceedings, the right is usually conferred by statute.

'Porter v. Williams, 9 N. Y. 142, citing Osborne v. Moss, 7 Johns. 161; Jackson v. Garnsey, 16 Johns. 189; Jackson v. Cadwell, 1 Cow. 622; Leach v. Kelsey, 7 Barb. 466; Jewett v. Palmer, 7 John. Ch. 65; Padgett v. Lawrence, 10 Paige, 170; DeMott v. Starkey, 3 Barb. Ch. 403; Underwood v. Sutcliffe, 77 N. Y. 58. In this case it was held that the receiver's power did not extend to an action to enforce a statutory trust, as where lands were paid for by him but conveyed to another.

52.

See 1 Rev. Stat. 728, §§ 51,

Gillet v. Moody, 3 N. Y. 479; Leavitt v. Palmer, 3 N. Y. 19; Brouwer v. Hill, 1 Sandf. 629; Hyde v. Lynde, 4 N. Y. 392; Chautauque County Bank v. White, 6 N. Y. 236; Bostwick v. Menck, 40 N. Y. 383 (1 Hand).

Barclay v. Quicksilver Min. Co. 6 Lans. 25. This was an action brought in the state of New York by a sequestrator of the state of Pennsylvania, but the principles discussed are applicable to receivers; it was held that the foreign sequestrator might

sustain his action to set aside a fraudulent transfer of property made by a Pennsylvania corporation. On the question of comity the court say: "This state has not yet become a sanctuary for the protection of property in the hands of a transferee who has acquired it by a fraudulent contrivance." Cf. Hamlin v. Wright, 23 Wis. 491; Dunham v. Byrnes, 36 Minn. 106; Barker v. Dayton, 28 Wis. 367; Wright v. Nostrand, 94 N. Y. 31; Carr v. Hilton, 1 Curt. C. 230; Kennedy v. Thorp, 51 N. Y. 174. In Olney v. Tanner, 18 Fed. Rep. 636, it is held that the title to property fraudulently conveyed does not vest in the receiver, but merely the right to prosecute a suit to set aside the fraudulent conveyance; and where there has been an assignee in bankruptcy appointed the right of action is in the assignee and not the receiver. Citing Glenny v. Langdon, 98 U. S. 20, 25 L. ed. 43; Trimble v. Woodhead, 102 U. S. 647, 26 L. ed. 290; Moyer v. Dewey, 103 U. S. 301, 26 L. ed. 394. The rights of assignees in insolvency proceedings to

Pending a chancery suit having for its object the subjection of the debtor's real estate to the payment of liens thereon the appointment of a receiver may be dispensed with if the debtor will give security to account for the rents and profits in case there should be a deficiency arising on the sale of the premises, but if the debtor does not ask permission to give such bond the appointment will be regular.'

§ 157. Order of appointment.

As we have already seen the order appointing a receiver cannot be questioned in a collateral proceeding,' and in a supplementary proceeding against an insolvent corporation the same doctrine prevails. Upon the opening up of a judgment against a railroad corporation in order to permit the corporation to come in and defend, the order appointing a receiver in a sequestration proceeding founded on the judgment should be vacated. A receiver in supplementary proceedings is fully protected by the order of appointment for all acts done thereunder, though the order of appointment is afterwards reversed. An order of appointment in this class of actions vests in the receiver the personal estate and equitable interests of the judgment debtor as of the date of the order, where the order is followed by giving bond as required, but he is not necessarily a trustee for all creditors, but is a trustee only for the benefit of the creditors at whose instance he is appointed, and in such case he must apply the money arising from a sale to the satisfaction of the judgments which

avoid fraudulent transfers which in many respects is similar to that of receivers is discussed in the following cases. Kilbourne v. Fay, 29 Ohio St. 264; Southard v. Benner, 72 N. Y. 424; Simpson v. Warren, 55 Me. 18; Clough v. Thompson, 7 Gratt. 26; Staton v. Pittman, 11 Gratt. 99; Moncure v. Hanson, 15 Pa. 385; Tams v. Bullitt, 35 Pa. 308.

'Grantham v. Lucas, 15 W. Va. 425. 'Chap. II. § 22, ¶ (h)

Commercial Nat. Bank v. Burch, 141 Ill. 519; Harris v. Lester, 80 Ill. 307; Wing v. Dodge, 80 Ill. 564; Her

nandez v. Drake, 81 Ill. 34; Wenner v. Thornton, 98 Ill. 156. The validity of an order of appointment cannot be tried in a contempt proceeding. Bagley v. Scudder, 66 Mich. 97.

Rodburn v. Utica, I. & E. R. Co. 28 Hun, 369.

"Holcombe v. Johnson, 27 Minn. 353. 6 Wilson v. Allen, 6 Barb. 542; Albany City Bank v. Schermerhorn, 1 Clarke Ch. 297; Porter v. Williams, 9 N. Y. 142; Rutter v. Tallis, 5 Sandf. 611; Cooney v. Cooney, 65 Barb. 524; except such property as is exempt from levy and sale.