Verplanck v. Verplanck

New York Supreme Court

Verplanck v. Verplanck

29 N.Y. Sup. Ct. 104

DecidedSeptember 15, 1880

StatusPublished

This text of 29 N.Y. Sup. Ct. 104 (Verplanck v. Verplanck) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Verplanck v. Verplanck, 29 N.Y. Sup. Ct. 104 (N.Y. Super. Ct. 1880).

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Opinion

Dykman, J.:

This action was commenced several years ago to partition lan daowned by the plaintiff and defendant in common. In June, 18J5r this court appointed a receiver, pendente lite, of the rents, and -ordered the receiver to divide monthly the net proceeds coming to [105]*105his hands, between the plaintiff and defendant. This limited sphere was all the court could rightly create for its officer. Such an appointment disregards, and is against, the legal title of one party,, and is justified only by protection necessarily extended to one of’ the two rights, to which protection the other’s invasion is unavoidably incident. (Vincent v. Parker, 7 Paige, 65.)

So, where one of two tenants in common refuses to rent, and unnecessary loss will result to the other, a receiver will be appointed^ (Pignolet v. Bushe, 28 How. Pr., 9.)

In February, 1876, Man and others'recovered judgment against-the defendant, ‘tad execution having been returned unsatisfied,, moved the court below to direct this receiver to pay their judgment from the defendant’s share of rents. They plead to equity' that the lien of the Us pendens in this action is prior to their judgment, and that they cannot sell under execution because the receiver is in possession.

Their legal remedy is to come into this action and press it t© judgment. Actual partition or a sale will be decreed, and they may sell their debtors’ several share, or will be paid from the proceeds of the sale decreed.

The docket of a j udgment gives no lien on rents, nor does a sal© of lands under a judgment and execution.

An actual partition may be decreed. In that case these applicants need not be parties.

It is deemed a perfect answer to repeat that the appointment is-an invasion of the legal title of one party on the application of the other. We have not the papers before us to be certain, but the invasion may be of the defendant’s title. A justification there doubtless was, but the necessity is the limit beyond which equity will not carry its interference with the legal title.

Order affirmed, with costs and disbursements.

Barnard, P. J., concurred; Gilbert, J., not sitting.

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Dykman, J.:

This action was commenced several years ago to partition lan daowned by the plaintiff and defendant in common. In June, 18J5r this court appointed a receiver, pendente lite, of the rents, and -ordered the receiver to divide monthly the net proceeds coming to [105]*105his hands, between the plaintiff and defendant. This limited sphere was all the court could rightly create for its officer. Such an appointment disregards, and is against, the legal title of one party,, and is justified only by protection necessarily extended to one of’ the two rights, to which protection the other’s invasion is unavoidably incident. (Vincent v. Parker, 7 Paige, 65.)

So, where one of two tenants in common refuses to rent, and unnecessary loss will result to the other, a receiver will be appointed^ (Pignolet v. Bushe, 28 How. Pr., 9.)

In February, 1876, Man and others'recovered judgment against-the defendant, ‘tad execution having been returned unsatisfied,, moved the court below to direct this receiver to pay their judgment from the defendant’s share of rents. They plead to equity' that the lien of the Us pendens in this action is prior to their judgment, and that they cannot sell under execution because the receiver is in possession.

Their legal remedy is to come into this action and press it t© judgment. Actual partition or a sale will be decreed, and they may sell their debtors’ several share, or will be paid from the proceeds of the sale decreed.

An actual partition may be decreed. In that case these applicants need not be parties.

It is deemed a perfect answer to repeat that the appointment is-an invasion of the legal title of one party on the application of the other. We have not the papers before us to be certain, but the invasion may be of the defendant’s title. A justification there doubtless was, but the necessity is the limit beyond which equity will not carry its interference with the legal title.

Order affirmed, with costs and disbursements.

Barnard, P. J., concurred; Gilbert, J., not sitting.

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29 N.Y. Sup. Ct. 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/verplanck-v-verplanck-nysupct-1880.

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