McKaig v. James ( 1887 )

Bryan, J.,

delivered the opinion of the Court.

A decree was passed by the Circuit Court for Alleghany County, sitting in equity, for the sale of the real estate of Thomas J. McKaig, deceased, on the ground that his personalty was insufficient for the payment of his debts. Afterwards a petition was filed by certain of his creditors praying that a receiver might be appointed to take charge of the real estate of deceased, and collect the rents and profits for the benefit of the creditors. If the real and personal estate combined, were sufficient to pay the debts-of the deceased, the creditors would have no reason to apply the rents and profits to their payment. They would be fully paid without a resort to them. If, however, a strong probability of this insufficiency should be shown, a Court of equity ought to interfere and appoint, a receiver. The creditors ought to be relieved from the hazard of losing their debts, so far as the rents might, contribute to secure them. Warfield vs. Owens, 4 Gill, 364. In this case no reasonable ground is shown for inferring that the real and personal estate combined will, not be fully adequate to pay the decedent’s debts. The application for the appointment of a receiver was heard on. petition and answer. In the .petition it is not averred, that the proceeds of the sale of the real estate will not be-adequate to the payment of all the debts, when taken in conjunction with the personalty. In the answer, however,, it is distinctly stated that the real estate is abundantly sufficient to pay all the debts of the deceased. When the hearing is on petition and answer, all statements in the answer must be regarded as true if they are susceptible of proof by legitimate evidence. Crowe vs. Wilson, 65 Md., 479; Eversole vs. Maull, 50 Md., 95.

(Decided 15th March, 1887.)

The Court modified the decree originally passed, and' in the modified decree appointed receivers of the real estate, with power to rent it. That portion of the decree which appointed receivers must be reversed.

Decree reversed in part, with costs to the appellants in this Court, and cause remanded.