Opinion
Argued December 22, 1876
Decided January 16, 1877
John Townshend for the appellant.
Chas. E. Whitehead for the respondent.
If the appellant is in contempt for a violation of the injunction granted in the original action of Mary Carey against Thomas W. Carey, or for any act inconsistent with his relation to the court as one of its attorneys and counselors, and suitors have sustained damage, the remedy, as well as the punishment, must be by summary proceedings, and not by formal action; and the plaintiff can take nothing in the present action, by reason of the alleged contempt of the court and its orders by the parties. The plaintiff's title is in virtue of the order of the 13th of December, 1867, which was affirmed upon appeal to the General Term of the court, the validity and regularity of which cannot be questioned in this action. The order was intended, and, in substance, was a sequestration of the personal estate, and of the rents and profits of the real estate of the defendant, Thomas W. Carey, at the instance of and for the benefit of his wife, suing for a limited divorce, and to compel the payment on security for the payment of the alimony ordered by the court, as authorized by 2 Revised Statutes (page 148, section 160). The title to the realty did not vest in the plaintiff as receiver of the rents and profits. He was entitled to the possession as against the defendant in the action, and all claiming under him, but his possession was the possession of the court, and his power was limited to such acts as should be specially authorized by the court. He could neither bring nor defend actions, lease the property or make any contract concerning it, or dispose of any funds or moneys that might come to his hands, except by permission and the direct authority of the court by which he was appointed. (2 Story Eq. Jur., §§ 833, 169; Parker v. Browning, 8 Paige, 388.) He might, by leave of the court, take proceedings to compel the surrender of the possession to him, either against the original defendant or against a stranger claiming the possession adversely to him; but his right under the statute and the order constituting the receivership being confined to the possession of the property, and the rents and profits, so long as his rights, thus limited, were unquestioned, and there was no interference with him in the exercise of his powers, either actual or threatened, he had no concern with the title to the realty, or interest in the determination of adverse claims, if any such there were. There is no claim or pretence that the appellant has made any claim, or asserted any title adverse to the rights of the plaintiff, as receiver; or that his mortgage is an obstruction to the performance of his duties or the exercise of his powers as receiver of the rents and profits of the mortgaged premises.
It would seem that any proceedings to compel the application of the rents and profits, or in any way to compel the payment of the alimony from the property, must be had by the party in whose interest the sequestration was ordered and the receiver appointed. This action appears to have been without object, and certainly has been without fruit to the plaintiff. He had no title in respect to which the appellant's mortgage was adverse, or upon which it was a claim affecting its value. When it shall be sought to enforce any judgment or claim against the corpus of the property, and to compel the payment of such judgment or claim thereout, the validity of this mortgage held by the appellant may be questioned; or if the appellant shall seek, by virtue of his mortgage, to oust the plaintiff of his possession, or obstruct him in the collection of the rents and profits, he will have his proper remedy, either by action or by summary proceedings in the original action. The sequestration was not, and could not be, affected, nor the title of the plaintiff as receiver impaired, by any act or deed of the owner of the property, after the sequestration and the appointment of the receiver.
The mortgage to Carey, the owner, given for a part of the purchase-money, upon the conveyance to Whyte, was in the hands of the mortgagee, necessarily subject to all the equities of the plaintiff in the original action, and the rights of the receiver therein, and he could make no better title to a purchaser or assignee than he had.
The appellant took, and now holds, the mortgage, subject to all such equities, and any purchaser from him will have no better title than he has.
This is the rule affecting all non-negotiable instruments and choses in action. If the plaintiff had an interest, which could be prejudiced by the existence of the mortgage, it would be unnecessary to restrain or forbid an assignment, for his rights would be the same against any assignee as against the appellant.
So, too, there was no occasion for an injunction against a foreclosure of the mortgage. A foreclosure, without making the plaintiff a party, will not affect him or his title, or possession, or right of possession; and if he is made a party, as can only be done by the leave of the court, he will be permitted to make any defence that is open to him; and the same objection now taken to the mortgage can then be made. A mere conveyance of the legal title, either by sale or under a mortgage, and a foreclosure and sale, is not inconsistent with or necessarily adverse to the possession of the plaintiff or his rights as receiver. The plaintiff did not make a case entitling him to the relief granted against the appellant, and upon the trial he asked no other or different relief, and has not appealed from the judgment given. Had the appellant asserted an adverse claim to the rents and profits of the real estate, which were the subjects of the sequestration, the complainant in the action would have had a remedy by an order for an examination of the claimant pro interesse suo, and such proceedings would be had therein as would lead to an adjudication of the rights of the parties. (1 Barb. Ch. Pr., 73, citing Bird v. Littlehales, 3 Swanst., 299, 300 n [ a]; Seaton on Decrees, 413; Johns v. Claughton, Zac., 573; Hunt v. Priest, 2 Dick., 540.)
A formal action would not have been necessary in such case, and this action at the suit of the receiver cannot be maintained.
The judgment must be reversed and the complaint dismissed as to the appellant.
All concur except MILLER, J., not voting.
Judgment accordingly.