Hayner v. Fowler

16 Barb. 300, 1853 N.Y. App. Div. LEXIS 142

Opinion

By the Court, Hand, P. J.

The plaintiff must necessarily recover, if at all, in his character of receiver. James conveyed all his real and personal estate to him before suit; but if he sues merely by virtue-of a conveyance voluntarily made, the prior deed to Fowler being good between the parties would have preference. (Brownell v. Curtis, 10 Paige, 210. Leach v. Kelsey, 7 Barb. 466. Osborn v. Moss, 7 John. R. 161.) Consequently the plaintiff must fail if, as receiver, he is not authorized to bring a suit to set aside this deed. In the case of Seymour v. Wilson, decided at this term,

Footnotes

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(a) I came to the conclusion that a receiver.has. no power to bring an action to set aside a prior assignment of a bond and mortgage made by the debtor and alleged to be fraudulent. (Green v. Hicks, 1 Barb. Ch. R. 309. Dorr v. Noxon, 5 How. Pr. R. 29. And see 3 Id. 128, 186.) It is different with a receiver of an insolvent corporation. (2 R. S. 469. Id. 40, et seq. Gillet v. Moody, 3 Comst. 479. And see 4 Barn. & Ad. 129.)

[Clinton General Term, July 4, 1853.

Hand, Cady and C. L. Allen, Justices.]

If Seymour v. Wilson was correctly decided, the objection applies with greater force in this case. The powers of a receiver,' in relation to real estate, are more limited. He should not even bring or defend an ejectment without the sanction of the court. (Green v. Winter, 1 John. Ch. Rep. 60. Wynne v. Lord Newborough, 1 Ves. Jr. 164. Anon. 6 Id. 287. Edw. on Receivers, 95.)

By statute, he may hold land upon trust, subject to the order or direction of the court. (Laws of 1845, ch. 112, p. 90.) But, except in cases of corporations, his duty is to protect "the property, receive the rents, issues and profits of the land, and collect and receive the personal property, and convert all the effects into money. (Wilson v. Allen, 6 Barb. 542. Chautauque County Bank v. White, Id. 189. Mann v. Pentz, 2 Sandf. Ch. R. 257. Storm v. Waddell, Id. 494.) And if the debtor conveys his real estate to the receiver, it seems he may be' directed to sell it.

This view of the case renders it unnecessary to examine the other grounds of demurrer.

Demurrer allowed.

Ante p. 294.