Opinion
July Term, 1898.
Motion for reargument denied.
The counsel for the appellant seeks by this application to obtain a modification of our former decision that the receiver hold the 112 bonds as a lien against the mortgaged premises to the extent of the personal property received by the defendant corporation, and not returned to the receiver. He asks us to decree that the said bonds be held also as indemnity for and to the extent of the incumbrances placed by the defendant company on the real estate transferred to it. We are of opinion that we cannot grant the appellant this relief. The conveyance of the real estate and the transfer of the personal property were separate transactions, or at least there is nothing in the record before us to show that they are component parts of the same transaction. Prior to the conveyance and transfer to the J.W. Young Sons Company, the real estate and personal property belonged to different owners, the real estate being the property of J.W. Young individually, while the stock in trade was the property of the firm of J.W. Young Sons. The opinion heretofore delivered by us is in error in stating that the realty belonged to the firm. As there were different ownerships of the different properties transferred, we do not see how the bonds given in payment of one can be held as an indemnity for the failure to return the other property unincumbered. The motion for reargument must, therefore, be denied. We do not find in the record the assertion of the respondents' counsel that the real estate transferred by the Tuckahoe Lumber and Coal Company was at the time of its transfer subject to a mortgage of $5,500. We are, therefore, of opinion that in settling the order to be entered upon our decision, it will be wiser to omit any provision for the release of the real estate conveyed by that company from the lien of the general mortgage and the surrender of the bonds given in payment of it. All concurred.