Wing v. Disse , 22 N.Y. Sup. Ct. 190 ( 1878 )

Smith, J.:

. This is an action to recover the possession of certain real estate in the city of Buffalo. The property formerly belonged to the defendant, Frederick Disse, who, as the jury found, was in possession of it at the time of the commencement of the action. The plaintiff claims title by virtue of his appointment as receiver of the property of Frederick Disse in proceedings against Disse supplementary to execution, had before the county judge of Erie county, under section 292 of the Code of Procedure. ■ The proceedings were commenced on September 25, 1867, upon a judgment docketed on November 15, 1854. The first receiver appointed was John Girard Johnson, who, having subsequently removed from the State, resigned his office, and thereupon the county judge of Erie accepted his resignation and appointed the plaintiff in his place. The defendant, Marie Disse, who is the wife of Frederick, claims title under a deed executed by her husband subsequently to the appointment of Johnson as receiver. No conveyance was executed by Disse to the receiver.

It is insisted upon by the counsel for the defendants, that the title to the real estate did not pass to the receiver, by virtue of his appointment, without a conveyance. We think the position is not tenable. • But as there is some apparent conflict of authority upon the question, a full expression of our views may not be out of place. Section 298 of the Code of 1849 provided for the appointment by a judge of a receiver of the property of a judgment-debtor in supplementary proceeding, in the same manner and with the like authority as if appointed by the court under section 244. The section last named authorized the court to appoint receivers according to the practice then existing, except as otherwise provided by the Code. Before the Code, a common-law receiver did not take title to the debtor’s real estate, by virtue of his appointment, nor under an ordinary assignment, except in cases where the court specially directed the debtor to convey his real estate to the receiver. (Chautauqua County Bank v. White, 2 Seld., 236.) But the word “ property,” as used in the Code, was defined in section 464 to include real and personal. In view of the statutory definition of the word, Judge Willard, sitting in the Court of Appeals, expressed the opinion that a receiver appointed by a judge in supplementary proceedings obtains title to the debtor’s real-estate as well as his personal propei’ty, by force of the order for his appointment, when the appointment is completed. (Porter v. Williams, 5 Seld., 142, 1853.) But in Moak v. Coats, decided by the General Term in the sixth district, in 1860, Campbell, J., speaking for the court, regarded the opinion of Willard, J., as obiter dictum ; and it was decided in that case that a receiver in supplementary proceedings takes the personal estate of the debtor by force of his appointment, but that the real estate vests in him only by virtue of a conveyance to him which the court has power to compel. (-3.3 Barb., 498.) That decision was affirmed by the Court of Appeals in September, 1867, but upon^ what ground does not appear. (33 How. Pr. R., 618.) The court in the sixth district relied mainly upon the case of Chautauqua County Bank v. Risley (19 N. Y., 374). But that case did not involve the construction of the provisions of the Code above referred to. The receiver, whose title was in question in that case, was appointed m an action brought by a judgment-creditor to set aside a conveyance of real estate as fraudulent, and a decree to that effect having been obtained, the creditor, through the receiver, had the real estate sold for the satisfaction of his debt. It was claimed that the purchaser from the receiver acquired a title free from the liens which had attached in favor of junior creditors, as well before as after the filing of the bill. But the court, rejecting that view of the matter, reiterated the doctrine that the receiver took title to the real estate only by force of the debtor’s own conveyance, and consequently that his title was subject to the liens that had attached before the conveyance was made. Clearly the case is not an authority upon the question, whether in supplementary proceedings under the Code the receiver takes title to the debtor’s real estate by force of his appointment. In Moak v. Coats, stress was laid upon the consideration that unless a conveyance is required to pass the debtor’s title, the provisions of the recording act for the protection of purchasers would not come into operation. Subsequent legislation has removed the force of that argument, by requiring that the order for the appointment of the receiver shall bo filed and recorded in the office of the clerk of the county where the judgment roll is filed (Laws 1862, ch. 460, § 15), and also that a certified copy of such order be filed and recorded in the office of the clerk of the county in which any real estate of the debtor sought ■ to be affected by such order is situated, and also in the office of the clerk of the county in which the debtor resides. (Laws 1863, ch. 392, § 1, p. 661.) That these two amendments, just now referred to, contemplated a transfer of the debtor’s real estate, as well as his personal property, by force of the order for the appointment of the receiver, when the appointment is completed, is apparent from their language. The amendment of 1862 provides that a certified copy of the order shall be delivered to the receiver, and ho shall be vested with the property and effects of the judgment-debtor from the time of the filing and recording of the order. That of 1863 requires the copy of the order to be filed and recorded, as therein provided, before the receiver shall be vested with any real property of the judgment-debtor, very plainly indicating that when done the real property shall vest in the receiver. These provisions are so clear to our minds that we would have been content to declare the law as we find it written, but for the fact that since those amendments were adopted the decision in Moak v. Coats has been followed by the General Term in the second department, in the case of Scott v. Elmore (10 Hun, 68). But in that case the learned judge who wrote the opinion did not advert to the amendments of 1862 and 1863. He relied mainly upon the cases of Bank v. Risley and Moak v. Coats, and he evidently yielded to the cogent argument of Judge Comstock in Risley’s case, that a court of equity has not power to cut off the right of redemption of a junior judgment-creditor, whose judgment ivas docketed before the proceedings in equity were instituted. That doctrine is not questioned. It was acted upon by this court in Dawley v. Brown (65 Barb., 107). But we are not now dealing with the ordinary powers of a court of equity. The question is, .what is the effect of an appointment of a receiver under section 298 ? The right to redeem land sold under an execution is a purely statutory right, which the Legislature may modify as they see fit.

In the present case the fee of the land was in the judgment debtor, at the time when the supplementary proceedings were commenced, it having been devised to him by a former wife, but that fact was not known to the creditors when they instituted the proceedings. .The debtor, on his examination in those proceedings, testified that he owned no real estate. The lien of the judgment and the right to issue execution upon it had expired by lapse of time, before the creditor discovered that the debtor owned the real estate. We are of the opinion that the title to it passed to the receiver by force of his appointment.

The point is taken by the appellant’s counsel that the judge had no power to accept the resignation of the first receiver and appoint a successor. We think it enough that he was expressly authorized to appoint a receiver with the like authority as if the appointment were made by the court. The court would have had authority to accept the resignation of a receiver appointed by it and to appoint a successor. It is true a receiver appointed by a judge in supplementary proceedings is subject to the direction and control of the court in which the judgment was obtained, (Code, § 298 as amended in 1862), but that provision is fully satisfied by holding that the court has the direction and control of the receiver, in respect to his discharge of the trust confided to him, and does not relate to his appointment or to the acceptance of his resignation by which he is relieved of the trust.

An exception was taken to the admission of evidence that Frederick Disse applied for a license to keep a saloon on the premises in suit, and paid the license fee. The evidence was admissible. Taken in connection with the fact that a saloon was kept on the premises, and that his name was on the sign over the door, it tended to show that he, and not his wife, was in possession of the premises.

The motion for a new trial should be denied, and judgment ordered for the plaintiff on the verdict.

Talcott, P. J., and Habdin, J., concurred.

Ordered accordingly.