Wilson v. Welch , 157 Mass. 77 ( 1892 )

Field, C. J.

Although the practice in this Commonwealth has not been uniform, (see Farmers & Mechanics' Bank v. Jenks, 7 Met. 592, Boot & Shoe Manuf. Ins. Co. v. Melrose Congregational Society, 117 Mass. 199, Sohier v. Lamb, 134 Mass. 275, and Parker v. Nickerson, 137 Mass. 487,) we consider the law to be that a receiver of a corporation appointed by a court of equity cannot bring suits in his own name to recover property of the corporation which has never been in his possession, unless he is authorized so to do by statute, or by the decree of a court competent to give him such authority, or unless the title to the property has been conveyed to him. Courts of equity cannot transfer the title to property by decree unless authorized by statute, although they can compel the defendant to transfer the title. Wilson v. Martin-Wilson Automatic Fire Alarm Co. 151 Mass. 515. The principal suit in which the receiver was appointed is Daniell v. East Boston Ferry Co., pending in the county of Suffolk, and it has never been before the full court. Suits by the receivers originally appointed, or their successors, have been considered by the full court, and they have been brought in the name of the receivers, but no objection was made to this. Sohier v. Lamb, and Parker v. Nickerson, ubi supra. An examination of the papers in the suit shows that the receivers were not appointed pursuant to Pub. Sts. c. 105, § 42, as the case is not within the provisions of that section, and it is unnecessary to consider what is meant by the words, “ with power to prosecute and defend suits in its name or otherwise,” contained in that section. The decree appointing the original receivers or the petitioner does not in terms authorize the receivers to bring suits in their own name, and we are not called upon to determine whether a court of equity, acting only under its general equity powers, can give such authority or not. Amy v. Manning, 149 Mass. 487. Davis v. Gray, 16 Wall. 203. Yeager v. Wallace, 44 Penn. St. 294. In re Sacker, 22 Q. B. D. 179. Battle v. Davis, 66 N. C. 252. High on Receivers, § 210 et seq.

If, however, there is no other objection to the maintenance of the present bill, it may be amended by substituting the name of the East Boston Ferry Company for that of the receiver. Merchants' Bank v. Stevenson, 7 Allen, 489. Byers v. Franklin Coal Co. 106 Mass. 131. Buckland v. Green, 133 Mass. 421. Costelo v. Crowell, 134 Mass. 280. Pierce v. Charter Oak Ins. Co. 138 Mass. 151. Pub. Sts. c. 167, § 42. St. of 1883, c. 223, § 17.

This suit was instituted for the same purpose as that of Sohier v. Lamb, ubi supra. Then twenty years • had not expired from the maturity of the bond, and the bond was supposed to have been lost. When the present suit was brought, more than twenty years from the maturity of the bond had expired, and the defendant admits that in 1884 the receivers obtained possession of the bond by replevin. This cause was heard upon evidence, and the decree recites that certain things appeared as matter of fact, one of which is, “ that said bond is now in the possession of the plaintiff, no other person having any interest therein.” The evidence has not been reported, and this finding must be taken to be true. The objection of the defendant is, that no proceedings have been taken to ascertain whether one Ottiwell or one Goodwin, from whose possession the bond had been taken by replevin, or any other person, has a claim to the bond, and that no decree should be entered until this has been done. Whether such proceedings should be taken must be left to some extent to the discretion of the justice who hears the case, or an application for such an order of inquiry, if any is made. It may be that at the hearing it was so clear on the evidence that no person could have a valid claim to the bond as an outstanding obligation of the Ferry Company, that the inquiry suggested was unnecessary. In the absence of any report of the evidence on the finding of fact of the justice who heard the cause, we cannot say that this objection was not properly overruled.

The fact that the complainant has not given a bond is not a defence to this suit. Any person interested can apply to the court to have this done, if thought necessary; but it is not contended that the decree appointing him receiver was on condition that he should first give a bond, or that it required him to give a bond. There should be some slight change in the form of the decree, unless the parties agree upon the amount for which the defendant is chargeable. An account should be taken of the condition of the trust fund, and of any losses or interest or profits for which the defendant is chargeable, and of all allowances that should be made to him, and, when the balance for which he is chargeable is ascertained, he should be ordered to convey the securities and the money for which he is chargeable to the East Boston Ferry Company, and to deliver them to the complainant as receiver.

Upon substituting the East Boston Ferry Company as complainant for the receiver, a decree is to be entered for the plaintiff, declaring the trust terminated, and ordering the defendant to convey the property for which he may be found justly chargeable to the plaintiff. The form of the decree may be settled by a single justice.

So ordered.