70 So. 892 | Miss. | 1916
delivered the opinion of the court.
The Payne Hardware Company was engaged in the mercantile business in the town of Tylertown, and P. E. Payne was the manager of the business. This- company handled, as local agent of the International Harvester Company, gasoline engines and a line of agricultural implements. In December, 1912, P. E. Payne, the president and active manager of the business, abandoned the business and left for parts unknown. Ou December 21, 1912, the Harvester Company sued out a writ of replevin, and it was levied on the engines, machinery, and implements in the custody of the Hardware Company. The Hardware Company failing to give
Tbe receiver contends that tbe property in issue was “used or acquired” in tbe business of the Hardware Company, “and as to tbe creditors of any such business” the property should be treated as tbe property of tbe Hardware Company and liable to be taken for its debts. In other words, tbe receiver claimed tbe property as assets of tbe Hardware Company, and that be was entitled to tbe posessession of same for tbe benefit of tbe creditors. This again brings into play our “sign statute,” which is section 4784, Revised Code 1906, and is in the following words:
“If a person shall transact business as a trader or otherwise, with tbe addition of tbe words ‘agent,’ ‘factor,’ ‘and company,’ or ‘& Co.,’ or like words, and fail to disclose tbe name of bis principal or partner by a sign in letters easy to be read, placed conspicuously at tbe bouse where such business is transacted, or- if any person shall transact business in bis own .name without any such addition, all tbe property, stock, money, and cboses in action used or acquired in such business shall, as to tbe creditors of any such person, be liable for his debts, and be in all respects treated in favor of bis creditors as bis property.”
“There can be no controversy as to the time when the right, authority, and possession of a receiver vests. 'The authorities are uniform on this subject, and it would be but burdening this brief to quote numerous citations supporting the well-known rule that the powers •and rights of a receiver are fixed as at the date of his appointment. But we respectfully make reference to "the language of a few decisions here mentioned, which, without question, disposes of the contention of counsel for the receiver that the latter is. entitled to the possession of the property sought to be recovered by him in this action, which was not in the custody, use, or control •of the Payne Hardware Company at the time of the appointment of the receiver, but, on the contrary, had by ■due process of law been reclaimed by its owners three weeks before the petition seeking the appointment of a receiver was ever filed.
“34 Cyc. 199, par. 4: ‘The receiver’s rights become fixed at the date of his appointment; his title accrues at that time, and thenceforward at the furthest the property is in custodia legis; so that other creditors up to that time may pursue their legal remedies and acquire liens and priorities, the order of an appointment not relating back to the commencement of the suit as against third parties.’ ”
It is very true that the rights of a receiver become fixed at the date of his appointment, and his title accrues at that time, and liens and priorities of creditors, properly acquired before the appointment of the receiver, will not be disturbed by the receiver. It will be -noted, however, in the present case, that the Harvester Company does not come into court, and did not replevy the
The facts are, without dispute, that the goods in question were placed in the storehouses of the Hardware Company, behind the sign of the Hardware Company— the business was conducted by the Hardware Company— •and the goods here involved apparently formed a part •of the regular stock of merchandise. The sign which it is alleged disclosed the ownership of the Harvester Company was, at best, merely an advertisement of the Hardware Company, that it carried the products of the Harvester Company as a part of its stock in trade.
“The receiver represents the creditors, as well as the stockholders, and holds the property for the benefit of both. He is the tnstee for both, and, as trustee for the creditors, can maintain and defend actions which the corporation could not. Franklin National Bank v. Whitehead, 149 Ind. 560, 49 N. E. 592, 39 L. R. A. 725, 63 Am. St. Rep. 302. The receivers, representing both the creditors and the defendant, have the right to assert any defense to which the creditors, in contradistinction to the defendant, are entitled. Hamor v. Taylor-Rice Engineering Co. (C. C.), 84 Fed. 393. But so far as his powers are- derived from a statute, or from a lawful decree of court, and the powers do not involve rights which, at the time of his appointment, were vested in such owners, he is not merely their representative, but is the intsrument of the law and the agent of the court which appointed him. Such right and authority as the law and the court rightfully give him he possesses, and in respect to such right he is not circumscribed and limited by the right which was vested in and available to the owners.”
Among the numerous decisions of this court construing’ section 4784 of the Code of 1906, we have not been able to find any case precisely in piont; but we are convinced that this case comes within the control of said section of our Code, and that the property in question, in so far as the creditors of the Hardware Company are concerned, will be conclusively held to be the property of the Hardware Company. It follows that in our opinion the court below erred, and the case is therefore reversed and remanded.
Reversed and remanded.