| New York Court of Chancery | Sep 15, 1847
The bill in this case prays for the appointment of a receiver, and the application is made to the court prior to the coming in of the answers, and also prior to the time when the defendants by the rules of the court can be considered as in default for not answering. In strictness, a receiver should not be appointed until after the answer, and although the rule has been broken through, that such an appointment will not, under any circumstances, be made before answer; the grounds which will induce the court to disregard the old rule, must be very strong and-special. It must appear, that the claimant has a title to the property, and the court must be satisfied by affidavit, that a receiver is necessary to preserve the property from loss. 2, Daniels’ Ch. Prac., 1974, and note ; Bloodgood vs. Clark, 4 Paige, 574.
Indeed it is believed, the authority and duty of the court to appoint or not appoint a receiver, depends upon the question whether the property is or is not in danger in the hands of the party who may at the time be in possession. As was said by the court in the case of the Orphans Asylum Society vs. M’Carter et al. in 1 Hopkins, 422, “a receiver is proper if the fund is in danger, and this principle reconciles the cases found in the books. There is no case in which the court appoints a rer ceiver merely because the measure can do no harm.”
In conformity with what seems to me the established rule upon this subject, that a receiver will not be appointed unless it appears that such a measure is required to preserve the property from danger of loss, the late Chancellor remarked in Hannah K. Chase’s case, 1 Bland, 213, “but unless she [the complainant] has also shown that the rents and profits are in imminent danger, a receiver cannot be appointed.” And in the case of Lloyd vs. Passingham, 16, Vesey, 59 — 70, Lord Eldon, speaking of the reluctance with which the court interferes by appointing a receiver, said, “the court must not only
It seems to me, therefore, indispensably necessary, that when an application is addressed to the court to appoint a receiver, either by the bill, or by petition subsequently filed, that a sufficient foundation must be laid, by stating the facts which will authorize the interference of the court in this form. Tomlinson vs. Ward, 2 Cown, 396.
The bill in this case, after stating the title of the complainants, and showing their interest in the property, which it may be conceded would be sufficient to authorize the appointment of a receiver, if the property were alleged to be in danger, proceeds to set forth the grounds upon which the application rests, which are, that after the death of Catharine Ann Walker, the tenant for life, the said Sater P. Walker wrongfully'took possession of the said property, and ever since has appropriated the rents and profits thereof to his own private purposes, and has always refused, though urgently requested so to do, to pay over the rents according to the express intention of the said deed of trust, so that the chief and only object of said deed is entirely defeated and annulled. But the bill does not state that Walker, the party alleged to be in the wrongful possession qf the property and in the enjoyments of the rents and profits, is insolvent, or unable to account for the same, or that without the appointment of a receiver, these rents and profits are in danger of being lost to those who may ultimately appear to be entitled to them; and the absence of any such averment, in my opinion, is, upon the principles which govern this court in applications like the present, fatal to the success of the application, which consequently cannot be allowed.
[No appeal was taken from this order.]