receiver's title dates from the time of granting the order, and not from the time of giving the bond,' or of filing the bill. 65. To real estate in foreign states. While the receiver does not become vested with title to real estate situated in a foreign state by virtue of his appointment as receiver, yet the inherent powers of an equity court are such that where the court has jurisdiction of the person, it may require him to transfer to the receiver any property the judgment debtor may own in a foreign state, where such transfer is necessary to the payment of his debts. The principles here announced, it will be observed, are directly opposed to those laid down in a preceding section in force in Massachusetts. In England where the court has jurisdiction of the person, and while it cannot send its officers into a foreign jurisdiction to carry into effect its orders, yet it has power to enforce obedience to its orders by punishment for contempt; and this power exists where the person or corporation committing the alleged contempt is not a party to the suit, provided such party is within the jurisdiction of the court appointing the receiver.* 1 Maynard v. Bond, 67 Mo. 315; Pope v. Ames, 20 Or. 199; Re Christian Jensen Co. 128 N. Y. 550; Chautauque County Bank v. Risley, 19 N. Y. 369; Porter v. Williams, 9 N. Y. 142; Van Alstyne v. Cook, 25 N. Y. 489: Bocker v. Torrance, 31 N. Y. 631. It would seem, however, that as to choses in action not subject to levy and sale, the filing of this bill creates a lien and the rights of the parties relate to that date. Clark v. Brockway, supra. Mitchell v. Bunch, 2 Paige, 606; Le Loy v. Rogers, 3 Paige, 237; Bailey v. Ryder, 10 N.Y. 623; Fenner v. Sanborn, 37 Barb. 610; Smith v. Tozer, 42 Hun, 22. And see Newton v. Bronson, 13 N. Y. 587; Gardner v. Ogden, 22 N. Y. 327; Williams v. Fitzhugh, 37 N. Y. 444; Shattuck v. Cassidy, 3 Edw. Ch. 152. (See limitation by Code of 1877,chap. 417, as determined in Smith v. Tozer, supra). Penn v. Lord Baltimore, 1 Ves. Sr. 444; Farley v. Shippen, Wythe, 135; Toller v. Carteret, 2 Vern. 494; Hughes v. Hall, 5 Munf. 431; Cronstown v. Johnston, 3 Ves. Jr. 170, 5 Ves. Jr. 277; Kildare v. Eustace, 1 Vern. 419; Derby v. Athol, 1 Ves. Sr. 203; Guerrant v. Fowler, 1 Hen. & M. 5; Massee v. Watts, 10 U. S. 6 Cranch, 148, 3 L. ed. 181; Ward v. Arredondo, 1 Hopk. Ch. 213. 8 Langford v. Langford, 5 L. J. Ch. N. S. 60; Richards v. People, 81 Ill. 551; Chafee v. Quidnick Co. 13 R. I. 442; Dehon v. Foster, 4 Allen, 545; Vermont & C. R. Co. v. Vermont C. R. Co. 46 Vt. 792. Sercomb v. Catlin, 128 Ill. 556. And it is not necessary that the receiver shall have reduced the property to his possession. Hazelrigg v. Bronaugh, 78 Ky. 62; Richards v. People, 81 Ill. 551. § 66. To real estate generally. In proceedings supplementary to execution, where the debtor has made no conveyance of his real estate to the receiver, pursuant to an order of court, and independent of statutory enactment, the receiver takes no title in the sense of ownership to real estate of the debtor. In this class of proceedings the receiver's title is a qualified title in the nature of a security for the plaintiff of the judgment, and such title thus qualified and limited, does not exhaust the title of the judgment debtor. Subject to the right of the receiver to resort to the land to pay the judgment the title remains in the judgment debtor, and a conveyance by him transfers the title subject to the claim of the receiver.' The court has 'Scott v. Elmore, 10 Hun, 68; Wilson v. Wilson, 1 Barb. Ch. 572; Chautauque County Bank v. Risley, 19 N. Y. 375; Moak v. Coates, 33 Barb. 498; St. Louis & S. Coai & M. Co. v. Sandoval Coal & M. Co. 111 Ill. 32. But see Porter v. Williams, 9 N. Y. 142, as to application of the then existing code. A land company having conveyed its lands by trust deed to secure its preferred stockholders, allowed its equity to be sold on execution and the time for redemption to pass, all before the filing of a bill in which a receiver of the company was appointed. Held, that the receiver took nothing by his appointment nor by conveyance from the company. Fitch v. Wetherbee, 110 Ill. 475. The appointment of a receiver only invests him with the title to such real estate as the debtor has within the state. Smith v. Tozer, 42 Hun, 22. See Code Civ. Proc. § 2468. A receiver derives his authority from the court appointing him and not from the act of the parties at whose suggestion he is appointed. The effect is to put the custody in his hands as an officer of the court for the benefit of the party entitled to it, but does not change the title or even right of possession. Union Nat. Bank v. Bank of Kansas City, 136 U. S. 223, 34 L. ed. 341; Maynard v. Bond, 67 Mo. 315; Heiman v. Fisher, 11 Mo. App. 275. A receiver of a corporation is not authorized to take possession of chattel property formerly owned by the company, but which has been sold on execution against it before his appointment. McIlrath v. Snure, 22 Minn. 391. The refusal by the defendant in a creditor's bill, to make an assignment to the receiver, in pursuance of an order of court, is no ground for a refusal by the master, to decide that the property is within the control of the defendant and to order it to be delivered to the receiver. Eldred v. Hall, 9 Paige, 640. Under the usual order appointing a receiver, in a creditor's bill, the debtor is bound to execute to the receiver a formal assignment of all his property, although he has stated under oath that he has no property. Chipman v. Sabbaton, 7 Paige, 47. Where a receiver was appointed in a case in which a large number of important interests were held by various parties,-held, that as he became vested with the title of all the property involved in the suit, by virtue of jurisdiction of course by its decree to divest the title of the debtor and vest the same in a purchaser under the decretal sale. In New York the rule is that a receiver of an insolvent person or corporation takes title without a formal conveyance. This however is by reason of the statute.' In a proceeding to dissolve a partnership the receiver takes the equitable title without an assignment.' The general rule is well established that a receiver takes the title of the corporation or individual whose receiver he is and that any defense which would have been good against the individual or corporation may be asserted against the receiver. But to this rule there is a well recognized exception which permits a receiver of an insolvent individual or corporation in the interest of creditors to disaffirm dealings of the debtor in fraud of their rights,* but as we have seen elsewhere this rule is dependent upon statutory powers and not upon the inherent equity powers of the court. Under the Michigan voluntary assignment law the receiver gets no better title than the assignee had. In general the the decree appointing him, he was entitled to the carriage of the decree into the master's office to compel the delivery of the property to him and that he was responsible for the exercise of his best judgment and good faith to all parties interested and was not to be controlled by any of the parties. Iddings v. Bruen, 4 Sandf. Ch. 417; Moore v. Duffy, 74 Hun, 78. A license to manufacture or sell a patented improvement, containing no words indicating an intention that it is assignable, is purely personal, and will not pass to a receiver appointed in proceedings supplementary to execution on the property of the licensee. Waterman v. Shipman, 55 Fed. Rep. 982, 64 Pat. Off. Gaz. 713. A receiver took property claimed by a stranger, upon which the claimant, to relieve the property, paid a sum of money into court, to abide the further order of the court. Held, that an or der authorizing a suit at law, to try the right to the property, without making any provision for the disposition of the money, was irregular. Parker v. Browning, 8 Paige, 388. 'Atty. Gen. v. Atlantic Mut. L. Ins. Co. 100 N. Y. 279. 2 Tillinghast v. Champlin, 4 R. I. 173. Republic L. Ins. Co. v. Swigert, 135 Ill. 150, 12 L. R. A. 328; Hyde v. Lynde, 4 N. Y. 387; Higgins v. Gillesheiner, 26 N. J. Eq. 308. 4Pittsburg Carbon Co. v. Mc Millin, 119 N. Y. 46, 7 L. R. A. 46; Gillet v. Moody, 3 N. Y. 479; Porter v. Williams, 9 N. Y. 142; Curtis v. Leavitt, 15 N. Y. 108. "Chapter on Corporations. Wisconsin Marine & F. Ins. Co. Bank v. Manistee Salt & L. Co. 77 Mich. 76; Farrington v. Sexton, 43 Mich. 454; Lentz v. Flint & P. M. R. Co. 53 Mich. 444; Byles v. Kellogg, 67 Mich. 312. rights and powers of the person or corporation over whose property the receivership extends, measures the rights and powers of the receiver in his relation to third parties, and all causes of action, or defenses, existing in favor of the former are available to the latter. § 68. Subject to all liens. A receiver appointed under the provisions of section 7, Act of 1869 (Stat. of N. Y.) "of all the assets and credits of an insolvent insurance company" is entitled to a surplus arising from a foreclosure of a real estate mortgage, and even if there is no formal conveyance of the land to the receiver.' And so after the sale of property under a chattel mortgage, the receiver is entitled to any surplus arising on such sale, as against the mortgagor, and also as against a judgment creditor who obtained judgment and levied on the property three days prior to the appointment of the receiver. Where it appeared that certain funds were pledged to a person as security for liabilities incurred by him, and prior to reducing such funds to his possession the pledgor died, but subsequently the pledgee did reduce them to his possession, the court refused to order the pledgee to turn over the funds to the receiver, there appearing to be no danger of loss and the liability of the pledgee as indorser still remaining.' And so where a note is given to a company for a particular purpose, a receiver of such company stands in no better position than the company and can treat such note only as the company could have done. And 'Atty. Gen. v. Atlantic Mut. L. Ins. Co. 100 N. Y. 279. Leadbetter v. Leadbetter, 125 N. Y. 290. The principle upon which this case is based is that the mortgagor, having made default in the payment of the mortgage had no interest remaining in the property liable to the lien of an execution (Hull v. Carnley, 11 N. Y. 502; Hall v. Sampson, 35 N. Y. 274; Galen v. Brown, 22 N. Y. 37; Manchester v. Tibbetts, 121 N. Y. 223), and it was determined in the lower court, in the same case, and not ap pealed from (32 N. Y. S. R. 890), that the mortgagor had no interest in the surplus, as against the receiver, after default in the payment of the mortgage. Brady v. Furlow, 22 Ga. 613. Bell v. Shibley, 33 Barb. 610, and authorities cited. The receiver of a corporation has the same right which it had to perfect title to property in its possession under a contract with the vendor that title should not pass to it until the property was paid for. Moore v. Mercer Wire Co. (N. J.) 15 Atl. 305. generally the receiver takes the property of the debtor subject to all liens attaching thereto at the time of the appointment,' and all equitable defenses and set-offs.' 1Kneeland v. American Loan & T Co. 136 U. S. 89, 34 L. ed. 379; Becker v. Torrance, 31 N. Y. 631; Scott v. Armstrong, 146 U. S. 499, 36 L. ed. 1059; Davenport v. Kelly, 42 N. Y. 193; Gere v. Dibbs, 17 How. Pr. 31; Van Alstyne v. Cook, 25 N. Y. 489. 'Adams v. Spokane Drug Co. 57 Fed. Rep. 889; Bell v. Hanover Nat. Bank, 57 Fed. Rep. 822. A receiver occupies the position of the debtor so far as the proceeds of the fund or property are concerned. Crine v. Davis, 68 Ga. 138. |
