150 Ill. App. 137 | Ill. App. Ct. | 1909
delivered the.opinion of the court.
Two separate and distinct transactions are here involved, neither of which is even remotely related to the other. Appellee seeks to rescind contracts relating to his purchase from appellant of certain timber licenses on the ground of misrepresentation and fraud, and to have such contracts cancelled and all money paid on account of the purchase price, with interest, decreed paid back to appellee. This is one transaction. The other is a sale by appellant to one Emmet Queen of 1,000 shares of Island Company stock for $300,000, .the taking of seven notes of Queen for the purchase price, with a retention of the stock sold as collateral security for payment of such purchase price. We take it from the argument of appellee that the injunction and receiver are intended to be adjuncts to the enforcement of a vendee’s lien, which, under the facts averred by appellee, arise in his favor upon the Queen indebtedness and security to appellant. But, as we understand, the doctrine of a vendee’s lien must rest for its support upon the actual property involved in the contract sought to be avoided. As applied to the case in hand, such lien of appellee would attach to the timber licenses the subject-matter of the contract between the parties, and to nothing else. To such subject-matter is the lien of the vendee restricted. Such is the trend of all the authorities cited by appellee, and none in this state is in conflict. It therefore follows that neither the injunction nor the receivership can be sustained on the theory that appellee has a vendee’s lien on the Queen stock and notes, or any interest in or claim to them. As this court s&id in Lemker v. Kalberlah, 105 Ill. App. 445, “While it is true that the appointment of a receiver pendente lite is a matter of discretion, it is not a matter of arbitrary discretion. Facts must exist and be made to appear to the court warranting exercise of the power and justifying taking into its possession the property in controversy. It is essential that the complainant should show * * * either a clear legal right in himself to the property in controversy, or that he has some lien upon it, or that it constitutes a special fund out of which he is entitled to the satisfaction of his demand.” As said in Leeds v. Ill. State, etc., 122 Ill. App. 650, “It does not appear from the allegations of the bill that the complainants have any interest whatever in the subject matter of the litigation.”
Appellee having no interest in the property, committed to the custody of the receiver, the only other theory upon which the action of the chancellor, in making the orders appealed from, can be sustained, is, that by reason of the non-residence of appellant and the fact that aside from the Queen securities it has no property subject to execution in this jurisdiction, therefore appellee has the right to the remedy granted by the injunctional and receivership orders, which in their essence, operate as an equitable attachment preserving the assets ordered into the hands of the receiver appointed, so that the same may be subjected to the payment of any money decree which shall be thereafter adjudged against appellant. But the difficulty of this situation lies in the fact that our courts neither recognize nor favor equitable attachments. Such has been the uniform attitude of our courts. In Dewey v. Eckert, 62 Ill. 218, the court say: “Our law does not recognize equitable attachments. Bigelow et al. v. Andress et al., 31 Ill. 323. This proceeding would virtually be one if it could be sustained as to the lands involved.” These remarks are of equal force and application to the condition confronting us and are decisive against appellee’s right to maintain a legal status in this case, which operates as an equitable attachment against the property of appellant. Detroit v. Ledwidge, 162 Ill. 305.
Mr. Justice Caton made these observations in Manchester v. McKee, 9 Ill. 511: “I may here remark upon a novel proceeding attempted to be introduced by this bill, and that is, that for the purpose of obtaining satisfaction of all of the notes mentioned in the bill (but upon which no judgment had been obtained at law), the party prays for an equitable attachment to be levied upon the premises upon which the mortgage had been foreclosed. * * * But, for this proceeding, I can find no authority in the former' practice of the courts of equity, or in the provisions of our statute.”
It was reversible error, even had it been otherwise permissible, to appoint a receiver, to make such order by fixing the bond of appellee and ordering it to be approved by the court within four days of the entry of the order. The statute governing this practice is contained in section 1, title “Receivers’ Session Laws, 1903,” which reads “that before any receiver shall be appointed, the party making the application shall give bond to the adverse party in such penalty as the court or judge may order, and with security to be approved by the court or judge, conditioned to pay * * * provided that bond need not be required when for good cause shown and upon notice and full hearing, the court is of opinion that a receiver ought to be appointed without such bond.” As this court said in Watson v. Cudney, 144 Ill. App. 624, 629, “To entitle appellee to the appointment of a receiver, he must as a sine qua non to the enforcement of that right, give the bond required by the statute, unless it is the opinion of the court that a receiver ought to be appointed without bond, and then the court’s opinion must affirmatively appear in the order making the appointment. The statutory requirement in this regard cannot be dispensed with. It was evidently enacted for the purpose of making liable the moving party in a receivership proceeding, for such damages as might result from the improvidence of his act in bringing about a receivership where none should have been asked.”
Courts are without power to appoint receivers without first requiring a complainant to give a bond, provided by section 1, supra, unless the necessity of giving bond is dispensed with in the order of appointment.
While it would seem that the injunctional order of March 26, 1909, was intended to supersede that of March 23, 1909, yet it did not do so, and while they are not in conflict, yet as they still cumber the record, it is our duty to remove each of them therefrom.
For the errors indicated the injunctional orders of March 23 and 26, 1909, and the order of April 9, 1909, appointing the Chicago Title & Trust Company receiver, are each reversed, and orders reversing the injunctional order will be entered in cases Gen. No. 15705 and 15714, and an order reversing the order appointing a receiver will be- entered in case Gen. No. 15733.
Orders reversed.
