Baker v. Carraway , 133 Ala. 502 ( 1901 )

TYSON, J.

In January, 1901, the plaintiff being in possession of the land here sought to be recovered, was turned out of possession by a receiver under and by virtue of the authority of the decree appointing him, and the defendant Deshazo went into possession of it as the tenant of the receiver. This action was brought on the 23d day of February following. The decree of the chancellor appointing the receiver directed him to take possession of this land and to rent it. This decree was rendered in a cause seeking the subjection of this land to a mortgage lien, of which the court is shown to have and exercised jurisdiction. The single question presented is whether the plaintiff can maintain this suit, without first obtaining the consent or order- of the' court, by which the appointment of the receiver was made, to institute it. That she cannot do so, is too well settled to be now a matter of disputation, unless section 803 of the Code changes the rule. — -Southern Granite Co. v. Wadsworth, 115 Ala. 570; Steele v. Walker, Ib. 485; Turrentine v. Blackwood, 125 Ala. 436; Kyle v. Swem, 99 Ala. 573; The Ft. Wayne R’y, Co. v. Mellett, 92 Ind. 535. A cursory reading of the statute is sufficient to show that it contains no authorization of the bringing of a suit against a receiver for the corpus of the estate, the management of which is intrusted to him by the court as its officer, without leave of the court appointing him, whatever may be the extent of the authorization conferred as to bringing suits against him in respect to any act or transaction of his, in carrying on the business connected with such property. It is scarcely necessary to say that the possession of the defendant Deshazo was the possession of the receiver. The affirmative charge requested by defendant should have been given.

Reversed and remanded.