95 F. 919 | U.S. Circuit Court for the Northern District of Georgia | 1899
The original bill in this cause was filed in the Eastern district of Louisiana to close the business of the New South Building & Loan Association, an insolvent corporation, and to pay its debts, and distribute its assets. The association having as
“That the character of securities in its hands as trustee and depository * * * are first liens on property of numerous borrowers from said association, that said liens are scattered through a number of states, and that such debtors are in many jurisdictions. Your orator is especially charged with the duty of protecting the interests of the bondholders and of the stockholders and creditors of said association to the fullest extent possible through said securities, and orator shows that it is impossible to satisfactorily collect in said securities and obligations, or to enforce collection of the same, except through the aid of a receiver; * * * that said assets will be largely wasted unless the same receive the immediate and vigorous attention of some person authorized by an order of * * * court to enforce collection of the same, and to deal with the affairs of said association in the manner to best subserve the interests 'of all parties.”
This bill was duly verified by affidavit. After having been appointed receiver, the petitioner Johnston Armstrong demanded of the Company the possession of these securities. The Company, under advice, declined to surrender possession of them to the receiver. The receiver therefore filed the petition or motion now before the court, seeking an order to place him in possession of the securities. The petition states the facts elaborately, and prays for an order directed to the Company requiring it to deliver the securities to the receiver.
The defense is made that the court has no jurisdiction to proceed in this summary way, but that a formal suit should be brought to recover the assets, and that on the facts the Company is entitled to retain the possession of the assets. It is stated in Parker v. Browning, 8 Paige, 388, that, “if the property is in the possession of a third person, who claims the right to retain it, the receiver must either proceed by suit in the ordinary way to try his right to it, or the complainant shall make such third person a party to the suit, and- apply to have the receivership extended to the property in his hands.” This case is often quoted approvingly, but usually with an emphasis in the context on the limiting words that the third person, to make the formal suit necessary, should be one who “claims the right to retain the property.” This claim of the right to retain it does not mean a bare refusal to surrender it. It means the assertion of some right or interest in the property; not a mere possession or a holding of the property for others who are parties to the suit, or whose rights are protected by the suit. The practice of requiring the surrender of property to the .receiver by summary motion or petition is well recognized where it is held by the attorneys, agents, and employés of the defendant. Beach, Rec. 230. The same practice seems not improper where the property in question is held by a defendant in the
Whether or not the Company is a necessary party defendant to the bill is a question not necessary to be now decided. If it is, and is not made a party, it would be permitted to intervene in the cause by petition, if it became necessary to dó so to protect or assert any interest involved in the suit.
• An order may be entered in conformity to the views expressed in this opinion, granting the relief prayed for in the petition.