Fillmore v. Horton

31 How. Pr. 424 | N.Y. Sup. Ct. | 1865

By the court, Grover, J.

The plaintiff did not acquire the legal title to the property of Hubbard, the judgment debtor, until he was appointed receiver in the supplementary proceedings. This has beén so decided by the court of appeals in a case not yet reported. The sale of the property by the defendant, upon the mortgage, was prior to that, as also his sale to Mrs. Hubbard. These sales cannot, therefore, constitute a conversion of the property as against the plaintiff, for which, as such, he can maintain an action.

By the appointment of the plaintiff as receiver, not only the goods and chattels of the debtor vested in the plaintiff, but also his choses in action. It follows that if the defendant had converted Hubbard’s property prior to the appointment of the plaintiff, the right of action would have vested in the plaintiff, and he could have maintained an action therefor.

It would, perhaps, be a sufficient answer to any claim of the plaintiff founded upon this ground, that the plaintiff has not, in his complaint, counted upon any such cause of action. It is true, that if the sales upon the mortgage and by the defendant to Mrs. Hubbard, were mere shams, so as not to transfer any title to the property as between the parties, but leave it remaining in the defendant, then the refusal to deliver the property by the defendant to the plaintiff, upon demand, after the appointment of the plaintiff as receiver, would be sufficient proof of a conversion of the plaintiff’s property. But no evidence tending to show that the sale from the defendant to Mrs. Hubbard was not a valid one between the parties, was given. The defendant had not only sold the property, but delivered it to the purchaser, and completely divested himself of possession before the demand was made. Under this .state of 'facts, the neglect or refusal of the defendant to deliver the property on demand, was no evidence of a conversion. It is only when a party has the possession or control of property that a refusal to deliver upon demand constitutes such evidence.

Whether the objection was taken upon the trial that the plaintiff could not recover for a conversion of the property while the title was in Hubbard, does not appear in the case. From the opinion of the learned referee, it appears that the right of the plaintiff to recover upon that ground was considered by him. The question whether there had been a conversion as against Hubbard, depended upon the question whether there was anything due upon the mortgage at the time of the sale of the personal property made by virtue of it by the defendant. This question has been fully discussed by the referee, and I think his conclusion thereon correct. This being so, there is no reason to reverse the judgment.

It should, therefore, be affirmed with costs.