Porter v. Kingman

126 Mass. 141 | Mass. | 1879

Soule, J.

If we assume that the allegations of the bill make a case for relief in equity, the question remains whether the plaintiff can maintain this bill, or must pursue her remedy by petition in the suit in which the defendants were appointed receivers of the property of the corporation, which is named as payee of the note and grantee in the mortgage. On the face of the papers, the corporation had a legal title to both instruments, and it was the duty of the defendants, under the order appointing them, to take possession of both. If the plaintiff has any equitable ground for insisting that the mortgage ought not to be enforced against her title to the land, such right must be made known to the court by a petition in the cause in which the defendants were appointed receivers. The property is in the custody of the court, and the defendants in holding it are officers of the court. Equitable rights which it is contended are superior to the title made by order of the court can be passed upon only in the cause in which that title is created, and cannot be set up in an independent suit. Atlas Bank v. Nahant Bank, 23 Pick. 480. Columbian Book Co. v. De Golyer, 115 Mass. 67. Wiswall v. Sampson, 14 How. 52. Noe v. Gibson, 7 Paige, 513. Robinson v. Atlantic & Great Western Railway, 66 Penn. St. 160. Russell v. East Anglian Railway, 3 Macn. & Gord. 104. 2 Dan. Ch. Pract. 1743. This well settled doctrine is entirely consistent with the decision in Hills v. Parker, 111 Mass. 508, and was recognized by the court in the opinion; but the plaintiff was permitted to maintain his action of replevin against the receivers of the Boston, Hartford and Erie Railroad Company, because the chattels in controversy had never been the property of that corporation, and therefore were not in their hands as receivers, and not in the custody of the court.

The demurrer is for this reason well taken; and the bill must be dismissed.

We express no opinion on the other question presented by the demurrer, the question whether the bill shows any equitable right in the purchaser of an equity of redemption from an assignee in bankruptcy to have a mortgage cancelled as having been obtained by fraud from the bankrupt. It will be time enough to pass upon that question when it is properly before us.

Bill dismissed, without prejudice