In the absence of a formal transfer or assignment a receiver pendente lite acquires no title in the sense of ownership to the receivership property, and his right is one merely of possession as an officer of court, the legal title of the owner remaining unaffected until transferred by operation of law by decree and sale.'

While receivers of this class have many powers and duties peculiar to themselves they are such only as flow from the nature and character of the property committed to their charge. Pendente lite receivers of corporations do not represent the corporations in their individual or personal character; nor do they supersede the corporations in the exercise of their corporate functions, except in so far as the custody and preservation of the property is concerned. The power of the court to protect the receiver's possession is based upon the fact that the fund or property is in custodia legis rather than the fact of title or ownership. The possession, however, will be protected as jealously as if the absolute title was vested in the receiver, and it is this condition of protection that is sometimes referred to as the receiver's title. It is true that the receiver may be considered as having a special property in the fund or res in the sense that a sheriff, or other officer is said to have, but in all such cases the officer's powers and duties in relation to the property are referrable to the peculiar nature of his possession rather than to any interest in or title to the property. § 60. In supplementary proceedings.

The code of procedure in many of the states, regulating proceedings supplementary to execution, vests the title of the judgment debtor to both real and personal property in the receiver, and no formal assignment is required. The receiver in such case stands in the position of a trustee for the creditors of all the property the debtor held at the time of the appointment.' The title

While the appointment of a receiver may not convey the title yet the appointment is in the nature of an injunction or a writ of sequestration, preventing any alienation of or interference with the property without the consent of court. Thus a lease by a party to the suit of land in the hands of a receiver made to a third party, however valid between the parties, confers no rights upon the assignee. Thornton v. Washington Sav. Bank, 76 Va. 432.

A receiver of the property of a beneficiary may reach the proceeds of real estate devised in trust to convert

19 N. Y. Supp. 971.

When a person wrongfully obtains payment of a debt adversely to the rights of a receiver he will be ordered to pay the same to the receiver and in default will be committed. Parker v. Pocock, 30 L. T. N. S. 458.

1 Porter v. Williams, 9 N. Y. 142; Manning v. Evans, 19 Hun, 500; Wring v. Disse, 15 Hun, 191; Fessenden v. Woods, 3 Bosw. 550; Atty. Gen. v. Atlantic Mul. Ins. Co. 100 N. Y. 279.

As to the title of receivers independent of statutes, see Wilson v. Wil

of the receiver in such a case relates to such indebtedness as may be due the debtor at the time of his appointment and not such as may become due thereafter,' and the same rule applies in the case of a receiver of a corporation, as to property subsequently acquired by the corporation. And where the vendor of merchandise reserves title thereto until the payment of the purchase price, a receiver of the vendee obtains no title to such merchandise and can convey no title thereto.'

§ 61. In statutory proceedings.

Under statutes designed to facilitate the dissolution and winding up of insolvent corporations, both in this country and in England, provision is usually made for the appointment of statutory receivers, with enlarged powers and duties. As a rule this class of receivers are invested by law with the title to both the real and personal property of the insolvent corporation, independent of any assignment or formal transfer. No general rules, of course, can be laid down concerning statutory proceedings, as all such are governed by the peculiar provisions of the statutes under which the appointment is made and there is no uniformity in their provisions. In many states the statute vests the legal title to receivership property in the receiver under supplementary proceed

son, 1 Barb. Ch. 592. Cf. Mann v. Pentz, 2 Sandf. Ch. 257; Wilson v. Allen, 6 Barb. 542; Scouton v. Bender, 3 How. Pr. 185.

This subject will be further discussed under the title "Supplementary Proceedings."

1 Willison v. Salmon, 45 N. J. Eq. 257. It must be a debitum in præsenti. In this case the contract was incomplete.

Gabert v. Olcott (Tex.) 22 S. W. 286 (not officially reported, and reversed in 86 Tex. 121, on other grounds sub nom Olcott v. Gabert).

Sayles v. National Water Purifying Co. 41 N. Y. S. R. 856, affirmed without opinion in 141 N. Y. 603. The basis of this decision is that the receiver gets no better title than the

4

judgment debtor has in the estate of which he takes possession (Bell v. Shibley, 33 Barb. 614) and that the receiver's rights in the property are subject to all the equities existing against the debtor. Hyde v. Lynde, 5 N. Y. 392; Ford v. Cobb, 20 N. Y. 348.

4 Atty. Gen. v. Atlantic Mut. L. Ins. Co. 100 N. Y. 279; Atty. Gen. v. Continental L. Ins. Co. 28 Hun, 360, affirmed in 93 N. Y. 630; Osgood v. McGuire, 61 N. Y. 524; Re Berry, 26 Barb. 55; People, Atty. Gen., v. Security L. Ins. & A. Co. 23 Hun, 596, 71 N. Y. 226; Morgan v. New York & A. R. Co. 10 Paige, 290; Decker v. Gardner, 124 N. Y. 334, 11 L. R. A. 480; Porter v. Williams, 9 N. Y. 142.

See further chapter on Corporations,

ings, as seen in the preceding section, but it will be observed that in such case the receiver's title depends upon the provisions of the statute.

62. In actions pendente lite.

Receivers pendente lite are mere temporary officers of the court and do not possess the powers of a permanent receiver unless specially conferred upon them by the court. They possess no legal powers, and their functions are limited to the care and preservation of the property or fund committed to their charge.' The power of appointment of a receiver of this character is an incident to the jurisdiction of a court of chancery, and is unaffected by the character of the parties before it, whether an individual or a corporation, or by the nature of the property,' and is usually brought into exercise in mortgage foreclosure cases. While this class of receivers have many duties and powers peculiar to themselves they are such only as flow from the nature and character of the property committed to their charge. Of course, in case of the foreclosure of railway mortgages the powers and duties of the receiver are increased by reason of the public nature of the property and the franchises involved, but the title of the receiver is essentially the same in all cases.

63. To choses in action due from nonresidents.

A court of equity under its general powers and independent of statutory authority has no power to compel a general assignment of all the property, or the choses in action, of a debtor in an action by a judgment creditor to collect his judgment, nor does the title to choses in action due the debtor from persons in a foreign jurisdiction pass to a receiver by virtue of his appointment, nor will a receiver have power to bring suits on such choses in action in a foreign jurisdiction.

'Herring v. New York, L. E. & W. R. Co. 105 N. Y. 372; Keeney v. Home Ins. Co. 71 N. Y. 396.

2 United States Trust Co. v. New York, W. S. & B. R. Co. 101 N. Y. 478.

3 Amy v. Manning, 149 Mass. 487; Harvey v. Varney, 104 Mass. 436;

As will be seen in the fol

Booth v. Clark, 58 U. S. 17 How. 322, 15 L. ed. 164; Brigham v. Luddington, 12 Blatchf. 237; Yeager v. Wallace, 44 Pa. 294.

Prior to the passage of the Massachusetts statute of 1884, a creditor's suit under the statute could not be maintained against the judgment

lowing section, the common law of New York is directly contrary to the principles here laid down. Under the provisions of the code of procedure in that state relating to proceedings supplementary to execution it is not within the power of the court to order the debtor to execute deeds of conveyance for real estate situated in another state."

§ 64. To choses in action generally.

The rule that a receiver's title dates from the time of granting the order for his appointment does not apply to choses in action in all cases; thus, where a debtor made an assignment for the benefit of his creditors and subsequently a creditor of such debtor filed a bill to set aside the assignment, in which action a receiver was appointed, and subsequently a decree was rendered setting the assignment aside, it was held that the receiver's title to certain promissory notes given to and held by the assignees, dated from the time of filing the bill to set aside the assignment; that the filing of the bill created a hands of the assignees from

debtor and an assignment compelled to be made by him of his choses in action due from non-resident parties, without making such persons parties defendant. Phanix Ins. Co. v. Abbott, 127 Mass. 558. The statute (1884) in substance provides that the fact that the property sought to be reached and applied is in the hands, possession or control of the debtor independently of any other person, or that it is not within the state, shall not prevent the plaintiff from maintaining his bill. Since the passage of this statute it has been held that such intangible property as letters patent in the possession of the debtor can be reached without making any other person a party defendant to the suit, and both before and since the passage of the statute promissory notes have been reached by this process without making the makers of the notes parties. McCann v. Randall, 147 Mass. 81; Wilson v.

lien on the choses in action in the that date,' though ordinarily the

Martin- Wilson Automatic Fire Alarm Co. 149 Mass. 24; Amy v. Manning, 149 Mass. 457.

'Smith v. Tozer, 42 Hun, 22. It seems that this inability of the court arises by reason of the provisions of the code vesting the real estate in the receiver from the time of his filing with the clerk of the county where the property is situated, a copy of the order; this could only be construed with reference to property in New York. It was otherwise under the code prior to 1877. Fenner v. Sanborn, 37 Barb. 610.

2 Clark v. Brockway, 1 Abb. App. Dec. 351.

Receivers appointed by the court upon a creditors' bill, to take, receive and hold property assigned by an insolvent bank, acquire all the rights of the assignees under their assignment. Hill v. Western & A. R. Co. 86 Ga. 284.