Leonard v. Storrs, 31 Ala. 488

31 Ala. 488 | Ala. | 1858

STONE, J.

— This record presents really but one question — namely, the right of the receiver to maintain this suit in his own name. If he have not that right, the record abounds in errors, which will be fatal to the action on any future trial. On the other hand, if he have the right, it is not important that we should inquire into the correctness of the several rulings to which exception was taken on the trial below. The nature of the plaintiff’s claim or interest in the note in suit, and the order of the chancellor which created that claim or interest, are among the uncontroverted facts of this record; hence, if the right existed to sue in his name, any errors into which the circuit judge may have fallen, if such there be, fall within the class of errors without injury. For such errors we do not reverse. — Dunlap v. Robinson, 28 Ala. 100, and authorities cited; Powell v. Powell, 30 Ala. 697.

It may be true that, without any statute on the subject, a chancellor may appoint a receiver for the rents of real estate, order the tenant to attorn to such receiver, and then clothe the receiver with the power of maintaining an action for the rents in his own name. — 3 Dan. Ch. Pr. 1977; Mansony & Hurtell v. Bank of United States, 4 Ala. 735, 752. This rests on the power of the court to create a privity, by compelling the tenant to attorn to the receiver. "When, however, in the absence of a statute, it is proposed to vest in .a receiver the right to collect, in Ms own name,, a promissory note, the legal title to which is in another, this presents a very different question. Whether such result could be accomplished, we need not decide. It is evident such power would not be conferred by an order appointing a receiver, and authorizing him to collect the note. — See authorities on the brief.

Let us consider the question as modified by the Code. Under the interlocutory order of the chancellor, made in reference to the effects of the late partnership of W. D. Riddle & Co., each of the partners was enjoined from collecting the note which is the foundation of this suit; and Leonard, the maker, was enjoined from paying it to them, or either of them. Mr. Storrs was appointed receiver, and was ordered by the chancellor to collect this note. Under this state of the case, Mr. Storrs had the sole and exclusive right to receive the money due on this note. We hold, that he was the party really interested, within the meaning of section 2129 of the Code, and that the action was properly brought in his name. We confine our decision to the case made by the record, and do not undertake to lay down any rule for the government of cases unlike the present. — See Franklin v. Osgood, 14 Johns. 527, 558.

The judgment of the circuit court is affirmed.