116 Cal. 365 | Cal. | 1897
This action was brought to recover the value of certain property alleged to have been transferred to defendants within one month before the com
Before answering the defendants demurred to the complaint on the ground that the same does not state facts sufficient to constitute a cause of action. One of the defendants, G. Cohn, then answered, and the case was tried before a jury, which rendered a verdict for the plaintiff, and the defendants appeal upon the judgment-roll without a bill of exceptions.
In 1891 section 63 of the Insolvent Act was repealed (Stat. 1891, p. 511), and section 6 amended so as to provide that the court shall make an order appointing the sheriff a receiver, to take charge and .possession of all estate, etc., of the insolvent, and to keep and care for and dispose of the same until the appointment of an assignee, and that his powers shall in all respects be regulated by the general laws of the state applicable to receivers. Section 568 of the Code of Civil Procedure, provides that a receiver has power, under control of the court, to bring and defend actions in his own name, to take and keep possession of the property, to receive ren ts, collect debts, to compound for and compromise the same, to make transfers, and to do such acts respecting the property as the court may direct.
The appointment of a receiver pendente lite does not change the title to property, and, in' the absence of a statute to that effect, would not authorize the receiver to sue in his own name for property which has not come to his possession. His possession is only temporary, and for the purpose of preserving the property that it
Even the creditors had no right of action against the defendants in respect to the property here involved. On the contrary, if the assignment had not been made in the insolvency proceeding, and until it is made, the defendants were rightfully in possession of the property —for aught that appears—as owners. The debtor had the right to make the preference, unless it was done in contemplation of insolvency, and for the purposes mentioned in section 55 of the act, and even then the validity of the transfer could only be called in question by the assignee.
The right of action is created by the act, and the assignee expressly authorized to sue. This right of action certainly was not in the insolvent, and ordinarily receivers can assert no rights which the owner could not have asserted to property. The exceptions are cases, especially provided for by statute, or the rules of equity, in which the receiver is authorized to sue in the interest of creditors. Many such cases are cited by the re
It does not appear that there was any order of the court directing or authorizing the suit.
The case of Adams v. Woods, 15 Cal. 207, has no reference to anything involved here. No question was there raised whether the suit was rightfully brought, and the suit was not to recover property fraudulently transferred by the debtor. In Matter of Real Estate Associates, 58 Cal. 356, it was only decided that, pending an appeal from the order of adjudication, the functions of the receiver are not suspended. Any suits which he could have maintained if the appeal had not been taken, he may still maintain.
The case of Ex parte Hollis, 59 Cal. 405, is not authority for the respondent. It was held that a person having property which he claimed adversely to the insolvent could not be required to deliver it to a receiver, and punished for contempt if he refused. The court should direct an action to be brought by the receiver or assignee. Even if such an action could have been brought by the receiver, it would not cover this case. There the right of action was in the insolvent; here it is not.
Respondent’s counsel seem a little forgetful as to the record. It contains no Exhibit B, showing what allegations were in the petition, but the complaint does show that there were no petitioning creditors. The record does not show that the receiver became also the assignee. If appointed after the suit was commenced, however, that would make no difference.
The judgment is reversed and the cause remanded.
McFarland, J., and Henshaw, J., concurred.