182 Ind. 572 | Ind. | 1914
On May 27, 1912, appellant as a stockholder therein instituted an action in the Allen Circuit Court against the Kerr Murray Manufacturing Company for the appointment of a receiver for the corporation of its assets as Veil as to prevent their waste should creditors bring suit then threatened, and levy executions on its property and bring about sales of its property at prices below its value. Insolvency was not alleged, but it was alleged that the company was indebted by mortgage for $250,000, and other large sums of money, and was unable to meet its obligations as they came due. The prayer of the complaint was for the appointment of a receiver to carry on its business, borrow money, carry out its existing contracts, enter into new contracts, and finally to close out its business, sell its property, and divide the surplus, if any, among its stockholders. The company at once filed its written waiver of the issuance and service of process and filed an answer in general denial. The cause was at once submitted to the court for trial and the Tri-State Loan and Trust Company was appointed receiver, accepted the appointment, and entered on the execution of the trust under directions contained in the order of appointment. On March 12, 1913, the receiver filed its petition to sell the property of the manufacturing company other than its ehoses in action. In this petition the debts and liabilities of the manufacturing company and their character were set out, and it was alleged that the company was insolvent. To that petition were made parties defendant, numerous persons and corporations who appeared and set up their claims. The manufacturing company also filed an
The judgment directed the receiver to procure the appraisement of the property in five classes, (1) the real estate and buildings and stationary boilers separately; (2) the equipment, machinery, engines of all kinds except the stationary boilers, separately; (3) the patterns, drawings for plants and machinery, separately; (4) an appraisement of all the items of the three preceding classes and all other property excepting materials on hand and products of the company wholly or partially manufactured as an entirety; (5) the materials on hand and products of the company wholly or partially manufactured, to be appraised separately from all other property. The court appointed three appraisers and ordered them to file their appraisement within ten days. The receiver was also directed after giving four weeks’ notice in a specified manner to offer the property for sale, and directing sale according to the direction for appraising it, and to receive bids on these parcels separately. It was ordered also that in ease of bids on separate portions, by the classes indicated, the whole should be offered, and if a bid for the whole, except the property of the fifth class
Objection is made to the appraisement, on the ground that appellant is informed and believes that the appraisers did not properly qualify themselves to learn and know the value of the property, and that the appraisement was far less
Tbe errors here assigned are, (1) in overruling tbe motion to postpone the sale of July 21, 1913; (2) in confirming tbe sale over appellant’s objection on July 23, 1913; (3) in approving tbe sale and ordering and approving a deed to the purchaser; (4) in refusing to order a new advertisement and sale as sought by tbe motion of July 21, 1913; (5) in refusing to reduce tbe amount of the bond to a sum not exceeding $25,000.
Tbe entire record of this case is made up of a transcript of tbe original complaint for tbe appointment of tbe receiver, and the entry of its filing; the appearance and answer of the Kerr Murray Manufacturing Company, an original bill of exceptions containing all tbe subsequent pro
It is not made to appear that the application to remove the cause to the Federal court ever went any further than filing the petition and bond for removal. The sale is not attacked as having been made for an inadequate price, nor is it claimed that a greater price could be obtained, and no fraud or collusion or deception of any kind is alleged. It is objected that the order does not direct a sale for cash. In terms it does not, but it directs that the sale shall be free from the liens, and necessarily implies a cash sale, and the notice of sale so provided.
As to the question of the sale being made at the site of the property and not at the courthouse door, appellant’s position is untenable. A receiver’s sale is a judicial sale, as contradistinguished from a statutory sale by a sheriff, or elisor, under execution or decretal order, which requires sale at the courthouse door. §799 Burns 1914, §756 R. S. 1881; 34 Cyc. 309; 24 Cyc. 6, 23; Lawson v. DeBolt (1881), 78 Ind. 563; Staser v. Gaar, Scott & Co. (1906), 38 Ind. App. 696, 78 N. E. 987. By the earlier common law, real estate could not be sold on execution at the instance of a private debtor. This rule was abrogated by statute in England as late as 1825, and in most, if not all the American states every interest of a debtor in real esta+e may be sold on execution, but both as to the question of requiring offer of the rents and profits before offer of the fee, and as to the question of redemption from such sales, such provisions are purely statutory, and
Numerous questions of practice are presented in this case which we deem it unnecessary to consider.
No error is made to appear, and the orders below are affirmed.
Note. — Reported in 107 N. E. 68. See, also, under (1) 3 Cyc. 159; (3) 34 Cyc. 313.