Maynard v. Bond

67 Mo. 315 | Mo. | 1878

Sherwood, O. J.

The only question in this case is, whether the title or right to the possession of the receiver to the money owing by the bank to the original defendant took effect by reason of and from the date of the order of his appointment, or whether his right in the premises dates only from the time he gave bond in compliance with the order of his appointment. A receiver is said to be uniformly regarded as an officer of the court, exercising his functions but for the common benefit of all parties in interest. He is elsewhere spoken of as the “ hand of the court,” and the property or fund entrusted to his care is regarded as in custodia legis, and that his appointment is in effect an equitable execution. (High on Receivers, sections 1 and 2 and cas. cit.) In Steele v. Sturgis, (5 Ab. Pr. R. 442,) it is said: “ The counsel for the sheriff only ob-. jects that he was prior in right to the receiver, because his levy was made before the receiver had executed and filed. the bond to be given by him. "When the court, in such cases, appoints a receiver, it is because the court has first adjudged that the property is no longer to be under the control of the parties to the suit, but is thenceforth to be and is in the custody of the court. The receiver then becomes merely an agent through whom the court acts; and whether he be forthwith appointed by the court as in this case, or a reference be made to a master or referee to appoint one, in either case the effect is the same; the title of the receiver is of the date at which it is ordered that a receiver shall be appointed. Then the title of the partners to control, dies, and then the title of the court and of its agent and officer immediately succeeds. As in case of natural death, the formal title * * * * * of executor does not become complete until letters * * * testamentary are granted as the evidence of title, but the title of the * * * executor, when he is appointed, takes effect from the moment death terminated the title of his testator; so, also, it is with the title of the receiver. The order of the court either impliedly or expressly takes the title from the parties, and vests it in the receiver from that moment. It is enough, however, if it took it from the parties ; after that no execution against them could be levied upon it.” And the motion that the sheriff deliver over the property to the receiver was granted. A similar enunciation was made in Rutter v. Tallis, (5 Sandf. 610,) and this Mr. High, in his recent work (High!5 on receivers, § 136), announces as the better doctrine. A different result has been reached in Maryland, Farmers’ Bank v. Beaston, ( 7 G. & J. 421,) and it is there held that the property of a defendant will not be sequestrated until actually reduced into the receiver’s possession. This last case is the only one I find directly opposed to the New York authorities, and also to that of Fairfield v. Weston, (2 Sim. and Stu. 98,) and to Edwards on Receivers, (pp. 4 and 22.) We incline to the opinion that the receiver’s appointment should date from the time the order is entered, regarding this view as better sustained by reason, as it certainly is by authority, and we the more readily incline to this view because, if upheld, it will greatly tend to prevent any unseemly conflict of jurisdiction, and because, further, a party claiming an adverse interest may appeal to the court appointing the receiver for leave to take the necessary steps to protect that interest. High on Receivers, § 142; Sto. Eq., § 833. Holding these views, the judgment of the court, not being in conformity thereto, must be reversed and the cause remanded.

All concur.

Reversed.