279 F. 750 | W.D. Wash. | 1922
It is admitted in the petition and at bar that the stock in controversy was delivered to the bank as security for the payment of the notes upon which the suit in the state court was prosecuted, and that the action was commenced long prior to the ap-. pointment of the receiver, and that judgment was entered after the-appointment of the receiver for the sum of approximately $38,000, and the judgment declared a first lien upon the certificates of stock, and di'ected a sale of the stock to satisfy the judgment, together with inte-est at 6 per cent. The judgment was entered on the 18th of February. It further appears at bar that bn the 23d of February the receiver . was advised that the judgment had been entered by the attorneys for the bank. It further appeared that the plaintiff waived the stipulated" attorney’s fees in the note. This application was made to the court on the 27th of February.
“It is also admitted that the judgment was a lien on the real estate of the defendant, and if appellant had had no other right.in or to the property in question than that dependent upon its judgment lien, such right would not have been affected by the appointment of the receiver. Under such circumstances it could have lawfully proceeded, notwithstanding, any claim of the receiver, to make its debt by execution, levy and sale of defendant’s property. * * * And this court held, in State ex rel. Machinery Co. v. Superior Court, 7 Wash. 77, 34 Pac. 430, that where a creditor has attached property, the court has no authority to direct a receiver appointed in an action other than the attachment suit to take possession of the attached property, as the attachment creditor has not only the right to have his; debt paid out of the proceeds of such property, but to have the sheriff retain it intact in the meantime. The same doctrine was again announced in State ex rel. Hunt v. Superior Court, 8 Wash. 210, 35 Pac. 1089.”
In Kidder v. Beavers, 33 Wash. 635, at page 643, 74 Pac. 819, at page 821, in a proceeding to foreclose a mortgage of personal property belonging to an insolvent corporation in the hands of a receiver, but of which the receiver had no possession, held that it was not necessary to obtain leave of court to foreclose the mortgage by sheriff’s notice, where the property is in possession of third persons claiming to have purchased it, and said:
“Since the corporation was neither in the actual nor constructive possession of the property in dispute, the receiver, by his appointment, took no greater right than a right to acquire possession in one of the methods which might have been pursued by the corporation itself, had a receiver not been appointed. This appellant was a stranger to the action in which the receiver was appointed; he was therefore privileged to seize any property described in his mortgage, not in the possession of the receoivor. The remedy of the receiver, under the facts shown, was the same as that of any individual interested in the foreclosure. Before he could contest the foreclosure he must allege the facts, as hereinbefore stated.”
This case is on “all fours” with the facts in this case, so far as the rights of the receiver are concerned, and is the last expression of the state court, and appears to be conclusive, and is in harmony with the holding in Cherry v. Western Washington et ah, supra. The Circuit Court of Appeals in this circuit in International Banking Corporation v. Lynch, 269 Fed. 242, held that the appointment of a receiver for an insolvent corporation in a creditors’ suit with order enjoining the interference with the receiver’s possession did not deprive a pledgee of the corporation’s security not a party to the suit, of the right to sell the
“The pledgee has a special property in the thing pledged, which entitles him to the possession, to protect which he may maintain detinue, replevin, o:: trover, and.the interest of the pledgor is not Subject to execution”
—and also quoted from Jerome v. McCarter, 94 U. S. 734, at page 739 (21 L. Ed. 136):
“The position, that the pledgees could not sell the pledge after the adjudication in bankruptcy is quite untenable. It is sustained by nothing in the Bankruptcy Act. The bonds were negotiable instruments. They passed ■b/ delivery, and even were there no expressed stipulation, in the contracts of p:edge, that the pledgee might sell on default of the pledgor, such a right is presumable from the nature of the transaction. Certainly the Bankruptcy Act has taken away no right from a pledgee secured to him by his contract.”
The permission to sue, therefore, will be denied.