Troughber v. Akin

109 Tenn. 451 | Tenn. | 1902

Mr. Justice Neil

delivered the opinion of the Court.

This is a proceeding to obtain a supersedeas to restrain the execution of an order entered in the chancery court of Robertson county, appointing a receiver to take charge of and rent out the lands in controversy in the case of E. E. Troughber v. Stephen Smelser et al., pending in that court.

To properly understand the matter, it is necessary to state the following facts: On the 15th of April,. 1898, a bill was filed in the chancery court of Robertson county by E. E. Troughber against J. T. Akin and others for the purpose of setting up a will which it was alleged that one G. W. Smelser had executed in favor of the complainant while he was of sonnd and disposing mind, and which he had subsequently been caused to destroy, while of unsound mind, by the defendant J. T. Akin and his wife, Emmaline Akin, and also for the purpose of setting aside a deed which it was alleged the said Akin and wife had induced the said G. W. ‘Smelser to make to them through undue influence, and while he was in said state or condition of unsound mind; also for the purpose of enjoining certain proceedings instituted by Stephen Smelser and Mary A. Cook, as heirs at law of G. W. Smelser, to have the said Akin deed declared void, and to have themselves adjudged entitled to a portion of the land as heirs at law of G. W. Smelser. Troughber claimed all of the land, consisting of several tracts, as devisee, to the exclusion of the heirs at law and of the said grantees under the Akin deed; also all of the personal property which was likewise bequeathed in the will, and which Akin and wife had obtained from G. W. Smelser by a hill of sale at or about the same time they obtained the deed to the land.

The prayer of the bill was that the court should set up and establish the will referred to as the last will and testament of G. W. Smelser, deceased, and that it should then be certified to the county court of Robertson county, to be legally recorded as the said last will, to the end that letters testamentary might issue, and that the provisions of the said will might be fully carried out; also that the said Akin deed might be set aside, and the bill of sale of the personal property, and that Akin and wife might be enjoined from committing waste upon the land, and held liable for such waste as had already been committed, and for the value of the personal property appropriated and converted by them; also that Stephen Smelser and Mary A. Cook be enjoined from the further prosecution of the suit brought by them, above referred to.

Answers and other pleadings were filed, and a decree finally rendered in the chancery court. From this decree an appeal was prayed and granted to this court, and at the December term, 1901, was referred' to the court of chancery appeals for examination and decision.

That court found the facts as claimed by complainant, Troughber, but was of the opinion that a final decree could not be rendered in favor of Troughber, because he had asked for a trial by jury in the chancery court, and had been refused by the chancellor, and that the cause should be remanded to the chancery court for the said trial by jury. On appeal to this court, the decree of the court of chancery appeals was affirmed.

When the cause again reached the chancery court, a jury was impaneled, and, in response to issues made up and submitted to them, found that G. W. Smelser executed the will as claimed in the bill; that he subsequently destroyed that will, while of unsound mind; that he was unduly influenced to destroy it; that he was unduly influenced by Akin and wife to execute to them the hill of sale of the personalty and the deed to the realty; and that he was of unsound mind when the latter papers were executed.

This verdict was rendered on December 11, 1902. Thereupon the defendant J. T. Akin moved for a new trial, and the hearing of the motion was'continued over until a future day of the term.

On January 3, 1903, the motion was determined in favor of Akin, on the ground that his wife, Mrs. Em-maline Akin, had died before the hearing of the cause, and the trial had been had without revivor as to her heirs at law, and that the latter were necessary parties.

On the same day Stephen Smelser and Mary A. Cook asked leave of the court to withdraw all of the defenses, to Trcraghber’s bill, and this was permitted, and judgment pro confesso was entered against them.

On December 12, 1902, after the verdict of the jury was rendered, and before the motion for new trial had been disposed of, complainant, Troughber, filed the bill in the present case.

In this bill he recited the substance of what has been above stated, down to the rendering of the verdict of the jury, and then alleged the following facts, viz.: That Akin had had possession of the lands devised to complainant, and had taken the rents and profits, since the death of G. W. Smelser, in January, 1896; that the rentals were worth two hundred and fifty dollars per year, and that Akin was indebted to him in the-sum of one thousand and seventeen hundred dollars on account of these rents, and in an additional sum for the value of personal property which he had appropriated to his own use, and which had been bequeathed to complainant — in all, the sum of two thousand dollars, or over, and that J. T. Akin was wholly insolvent; and that he was about to fraudulently dispose of his crops raised on said land, and of a one-twenty-eighth interest in said lands which he had purchased from one D. O. Andrews, for the purpose of defrauding the complainant out of the said sum due to him,, and also to escape the payment of the costs of the-cause. It was alleged in the bill, on information and' belief, that, Avhen the court of chancery appeals decided the case against Akin, he had removed a portion-of his personal property into the State of Kentucky,, and had disposed of it, for the purpose of escaping the-payment of the rents and profits to complainant, and “that his son-in-law, George Miller, voluntarily paid the costs, which were adjudged against defendant Akin by the supreme court, and publicly stated that he was conducting the laAvsuit, and proposed to hold the land, and use the rents and profits from the same for the purpose of paying the expenses of the said litigation.”

It was further alleged in the bill, in positive terms,, that defendant Akin, since he had been in possession of the land, had used it in so reckless a manner that it was washed in holes and gullies, and was worth hardly half as much as it was when he entered upon it, and that he had cut a large amount of valuable timber.

The bill also referred to the motion for a new trial above mentioned as an evidence of the fact that the defendant Akin had resolved to remain in possession of the land and use it in defiance of right and justice.

The prayer of this bill was for an attachment to issue for the purpose of seizing the crops before mentioned, and also the one-twenty-eighth interest in the land purchased from D. O. Andrews, to secure the payment of the amount claimed for rents and personal property converted, and also for a receiver to take charge of the said lands involved in the first case— that of E. E. Troughber v. Stephen Smelser et al.

It was alleged that, if a receiver should not be appointed, the land would be very greatly injured and lessened in value.

This bill was sworn to on “knowledge and belief.”

On January 3, 1903, the day the motion for new trial was determined in the parent case, Troughber filed an amended bill, which contained the additional allegation that on May 5, 1902, defendant J. T. Akin had mortgaged all of his personal property of every description to one George Miller to secure a note in the sum of five hundred dollars, and that both the note and mortgage were fictitious and fraudulent, and made for the purpose of defrauding the creditors of Akin,, and especially for tbe purpose of defeating complainant’s claim for rents and for tbe costs of tbe litigation in tbe case of E. E. Troughber v. Stephen Smelser et al. A copy of tbe mortgage was exhibited.

This bill was sworn to on “knowledge, information, and belief.”

On tbe same day Akin filed an affidavit in tbe cause, containing tbe following denials and averments, viz.: “That be is not insolvent; that be has not injured tbe land; that be bas not tried to, nor bas be wrongfully-cultivated the said land; that be bas not cultivated tbe land so as to make gullies in it; that be does not owe to complainant a cent for rents; that tbe verdict of tbe jury has been set aside; that be bas not committed waste; that tbe land is more salable now than when he got it; that be bas been in possession of tbe land since January, 1895; that tbe mortgage to George Miller is for an honest debt, and was not made to binder and delay creditors; that be bas improved the land greatly; and that be bas a legal and valid defense to tbe bill filed in this cause.”

Tbe chancellor thereupon appointed a receiver to take charge of tbe lands and rent them out, first requiring a bond of tbe complainant. Tbe decree states that tbe receiver was appointed on. motion of tbe complainant, and that this motion and tbe action of tbe court were based upon tbe bill and amended bill in tbe present case, -and tbe mortgage made by Akin to Miller, exhibited with tbe amended bill, the affidavit of Akin, “and the whole record in the case of E. E. Troughber against Stephen Smelser and others, pending in this court, and the court granted said motion for a receiver, and appointed said receiver after due consideration of the same.”

The petition now before us was filed for the purpose of having the said order superseded, and is accompanied by the record in the case of E. E. Troughber v. J. T. Akin, as well as the record in the case of E. E. Troughber v. Stephen Smelser et al.; the latter appearing in a transcript of more than nine hundred typewritten pages.

Both of the cases are still in the lower court. Nothing is here, technically speaking, except the application for supersedeas.

We are mindful of the fact that the consequences of our decision upon this matter can not be otherwise than grave and important to the respective parties, and we have given as full- consideration to the questions involved as we could in the time at our command.

Numerous errors are assigned that go merely to the form of the proceeding below. These we shall dispose of very briefly.

It is said that the appointment was made in the present case, and not in the original case in which the land was sued for. This is immaterial. The present suit was brought only in aid of the,original suit, and to enforce rights growing out of that suit. The entire litigation was treated as one by tbe chancellor, and both records referred to. The bill in the present case was, among other things, filed expressly for the purpose of having a receiver appointed for the property involved in the prior pending litigation. Application may be made by bill or petition (Gibson’s Suits in Chancery, secs. 856, 857), or even on motion (Henshaw v. Wells, 9 Humph., 568, 570); but, when a case is already pending in which the property is involved, the proper practice is to present the matter by petition or motion supported by affidavit in that cause.

It appears that, when the chancellor referred to the .-application in the decree, he spoke of it neither as having been made by petition nor by bill, but as if made by motion supported by the record in both causes. "The real, substantial thing is that both causes were in the same court, and referred to the same subject-mat-ter, only in different aspects; and the chancellor had both before him, together, and also had jurisdiction of -the property involved, and his decree, appointing the receiver shows these facts. Under these circumstances, if he otherwise had jurisdiction' to make the «order, it could not be held that his jurisdiction was defeated by the fact that the order was entered under -the style of the dependent cause, rather than under the original.

It is said the appointment was made without notice to Akin. This is met by the fact that Akin seems to have been present, and he filed a counter affidavit,., which the chancellor considered.

It is said that Akin’s affidavit fully met the allegations of the bill; also that the affidavit to the bill was-not sufficient in form; that the receiver was not seasonably applied for, the bill in the original cause having-been filed April 15, 1898, and the application not; having been made until January 8,1903.

The foregoing are all matters of mere form, not going to the jurisdiction of the chancellor to appoint, the receiver, and can not, in general, be considered' when collaterally presented, as upon the present application. If the chancellor had the power to appoint a receiver under the facts stated, this court could not, in general, review, on an application for a super-sedeas, his irregular exercise of that power, any more-than it could review any other interlocutory order,, as an order granting or dissolving an injunction. Baird v. Turnpike Co., 1 Lea, 394; Bramley v. Tyree, 1 Lea, 531; Johnson v. Banner, 2 Lea, 11; Hamilton v. Wynne, 3 Shannon’s Tenn. Cas., 34; Roberson v. Roberson, 3 Lea, 50, 52; Enochs v. Wilson, 11 Lea, 228, 232, 233. The appointment of a receiver is ordinarily in the nature of granting extraordinary process, for-it neither settles nor prejudices rights, and is only resorted to for the purpose of preserving the-property pending the litigation. Id.

The real question for determination is whether the-appointment of a receiver in the pending litigation. was a true exercise of the right of the chancellor to preserve the property for the benefit of whomsoever may be finally successful in the suit for the property, or whether it was really a decision upon the merits of the controversy, by interlocutory .order, in advance of a final decision of the cause. The settlement of the question requires an examination of some of our decisions:

Richmond v. Yates, 3 Baxt., 204. In this case it appeared that Yates had caused to be levied on' and sold certain land as the property of Mrs. Richmond’s husband, and had become the purchaser at the sheriff’s sale. Mrs. Richmond, being in possession of the land, and claiming to be the owner of it by reason of its having been bought and paid for with her money, filed her bill against Yates to assert her right thereto, and contesting his claim. Yates- thereupon filed a cross' bill, making the husband of Mrs. Richmond a party thereto, but not Mrs. Richmond herself; his purpose being, we assume (the facts not being fully stated in the opinion), to obtain possession of the property under the sheriff’s deed. Yates proceeded to take the testimony on his side, and having secured enough, in his opinion, to establish his right to the land, he asked the chancellor for a receiver. The receiver was accordingly appointed, and the appointment superseded by an application to one of the judges of this court at chambers. Subsequently the matter came up on motion to discharge the supersedeas; the cause still pending in the court below, not being ready for trial. In this state of the matter, this court, speaking through Nicholson, C. J., said: “To discharge the supersedeas under such circumstances would be tantamount to deciding the question of title upon an ex parte view of the proof. The same reason exists now which induced the granting of the supersedeas. It is a contest as to thé title of the land, the complainant being in possession; and, until it is determined upon the hearing that her title is invalid, she can not be disturbed in the possession.”

Morford v. Hamner, 3 Baxt., 291. This is a case usually cited upon the subject we now have in hand, but the only point decided in it was that the vendor’s lien does not extend to the rents, and the vendor can not have a receiver appointed for the purpose of impounding the rents, and applying them to the payment of the purchase-money debt. The court said: “It is no part of the contract of sale, either express or implied, that the vendor shall appropriate anything but the land itself by sale for the satisfaction of his purchase money; and by the contract the purchaser is entitled to the possession until the land shall be sold to satisfy the unpaid purchase money. Upon this ground the supersedeas in the present case was granted, and for the same reason the motion to discharge it is disallowed.” See, however, the reasoning in Moore v. Knight, 6 Lea, 434-439.

Davis v. Reaves, 2 Lea, 649. This was an application for tbe appointment of a receiver in this court in a suit which, was said to be, in substance, an ejectment suit. The substance of the decision was that the-rule that no receiver could be appointed in such cases,. announced in Richmond v. Yates, supra, was not art-inflexible one, but that a very strong showing must be-made before such appointment could be had. In that, case it appeared that the complainants had succeeded; in the court below, and the defendants appealed.. Speaking to the motion for the appointment of a receiver, the court said: “Even if the decree below' for~ the complainants raised a presumption in their favor, a questionable point, in view of the settled doctrine-of this court that the appeal vacates the decree, it would not alter the general rule. The burden would’ still be on the applicant for a receiver to establish-a proper case, and the law certainly requires, in an-ejectment suit, a strong showing to justify interference with actual possession. Such a showing obviously demands that the court should be reasonably satisfied that the recovery, on the basis of the decree, would' be in favor of the complainant, and for some definite-amount, and that this recovery would be lost unless-the receiver was appointed. There is no such showing.”

State v. Allen, 1 Tenn., Ch., 512. In this case-judge Cooper used the following language, which expresses the substance of the case: “The court is very-slow to appoint a receiver of realty in the peaceable-possession of defendants under a claim of right, and where the contest is between claimants of the legal title. For, the court can not interfere with the legal title, unless there he some equity by which it can affect the conscience of the party in possession. Knight v. Duplessis, 1 Ves., 324; Willis v. Corlies, 2 Edw., Ch., 281; Huguenin v. Basely, 13 Ves., 105. And such Interference is, to a certain extent, giving relief, and, upon a preliminary motion, depriving the defendant -of the present use and enjoyment of the estate, and, pro tanto and pro tempore, giving a decision against ‘him. Houlditch v. Lord Donegall, 1 Beatty, Ir. Ch., 402. The property was not, however, at the filing of the bill, in the peaceable possession of the defendants,” etc.

Cassetty v. Capps, 3 Tenn. Ch., 524. The syllabus 'fully expresses the substance of the case, and is as follows: “Equity will not, pending a suit for a sale -of land for division among cotenants, interfere, by the appointment of a receiver, with the lawful possession of one of the tenants, it not appearing that he -disputes the title, or interferes with the possession of his cotenants, especially if there is no sufficient averment of insolvency.”

Blake v. Dodge, 8 Lea, 465. The bill in this case was filed to close up a partnership in a race mare. 'The mare was to be trained by the defendant, at certain wages, and when trained sold, and the profits divided. In the court below an order was entered to sell the mare, whether through a receiver or otherwise does not appear. Upon application to one of the judges of this court, the order was superseded. Subsequently, upon a motion to discharge the supersedeas the court said: “The order of sale deprives the defendant of his property before the animal is trained so as to insure the expected profits. The order may not be erroneous, and yet it certainly accomplishes in advance all the purposes of the final decree. It falls clearly within the statute.”

Downing v. Dunlap Coal & Coke Co., 98 Tenn., 221 (24 S. W., 122). The syllabus states the substance of the case fully, and is as follows: “A supersedeas is properly granted by a judge of this court to stay an interlocutory order of a chancery court, based alone upon bill, answer, and ex parte affidavits, placing a solvent and going corporation in the hands of a receiver pending a suit by the minority of its stockholders to wind up its affairs, thereby determining finally, in advance of a hearing on the merits, issues made by the pleadings, vital to the interest of the parties, and wresting the management of the corporation from the majority of its stockholders,” etc.

Pearson v. Gillenwaters, 99 Tenn., 446, 456 (42 S. W., 9, 63 Am. St. Rep., 844). One of the questions in this case was whether at the instance of a purchaser of real estate at a chancery sale, and after confirmation, a receiver could be appointed to take charge of the land and rent it out, pending an appeal from the decree of confirmation. The court held that such a receiver could not be appointed, on the ground that the appeal vacated the confirmation, and the owner of the land was entitled to the rents until the final confirmation, not on any question of disturbing possession, merely, pending a litigation.

There are some general observations in some- of these cases and in others that should be noticed here.

In Downing v. Dunlap, etc., Co., supra, it is said (page 235, 93 Tenn., and page 125, 24 S. W.) : “The question is as to the effect of the decree at the stage made, and in the condition of the record. It is not whether the order was erroneous, hut whether one to be enforced actively, and which may deprive the party complaining, of rights of money or property, in advance of the final hearing. All the court can do on application for or on motion to discharge a superse-deas is to see that the order complained of is of this character. Blake v. Dodge, 8 Lea, 465. The power is limited to such an order or decree as determines rights of the parties, about which they are litigating, in advance of a hearing, and which is susceptible of being executed by some affirmative action or process.”

In Johnson v. Hanner, supra, it is said: “The appointment of a receiver, as the court has recently said, is ordinarily in the nature of extraordinary process, for it neither settles nor prejudices rights, and is only resorted' to for the purpose of preserving the property in controversy, pending the' litigation, for the benefit of the successful party. Baird v. Cumberland & Stone River T. P. Co., 1 Lea, 394. All of our circuit judges and chancellors are by statute authorized to make such an appointment in vacation as well as in term time. Code, secs. 3948, 4452. Such an appointment is therefore clearly within the competency of the court, and an order in term can not be revised by this court by a supersedeas under the Code, sec. 3933. Bramley v. Tyree, 1 Lea, 531. Nor, a fortiori, a fiat making the application at chambers.”

In Enochs v. Wilson, 11 Lea, 228, 233, it is said: “An order appointing a receiver merely for the purpose of taking possession of property in litigation, and managing it for the interest of all parties, is in its very nature interlocutory, no matter at what stage of the cause it may be made. All of the courts of this State, and the judges thereof, are clothed with the power to appoint receivers- ‘for the safe-keeping, collection, management, and disposition of property in litigation/ when necessary to the ends of substantial justice. Code, secs. 3768, 3948. Such an order can neither be appealed from directly, nor superseded under the special provisions of the Code authorizing the supersedeas of certain interlocutory orders. Code, sec. 3933. Such orders, as well as all other .proceedings in a chancery cause, are brought up for revision by a general appeal, but remain in force unless otherwise ordered by this court,” etc.

In tbis connection, it is proper to introduce tbe case of Cone v. Paute, 12 Heisk., 506. Tbe complainant was a judgment creditor of Paute and filed bis bill, after return of execution nulla bona, to reach and subject tbe equitable interest of Paute in tbe property, and with a view thereto, sought tbe foreclosure of prior deeds of trust, seeking to reach tbe surplus after the satisfaction of the prior debts. To tbis end, be prayed for a receiver pendente lite. Tbe chancellor made tbe order upon tbe ground that tbe defendant, Paute, was in possession of tbe property involved in the controversy, receiving tbe rents and profits, but failing to remove and keep down tbe accumulating in-cumbrance of State, county, and city taxes, and in tbe order directed that tbe property, lands, etc., be taken out of the possession of tbe defendant, Paute, and placed in the hands of tbe receiver, and that tbe latter appropriate tbe rents and profits to tbe payment of taxes accrued and accruing.

Speaking to tbis order, tbis court said, through Nicholson, C. J.: “Tbis is such an interlocutory decree as may be superseded where a proper case is made out.” But upon examination (page 508, 12 Heisk.), tbe court held that tbe chancellor acted judiciously in making tbe order, and declined to interfere with it.

There are some general conclusions to be deduced from tbe foregoing authorities, which will be found useful in enabling us to reach a correct solution of the special case we have for decision. They are as follows, viz. : That the power to appoint receivers belongs to all of the courts of the State, and to the judges thereof, and orders appointing receivers belong to the class of interlocutory orders, and are not, in general, reviewable upon application for supersedeas, any more than other interlocutory orders, such as those granting or dissolving injunctions; that interlocutory orders, however, may be so erroneously passed and drawn as really to contain elements proper only in a final decree or judgment, and when so drawn, and when in addition, they are of a kind capable of active enforcement, they may be reviewed upon application for supersedeas, — and it may be deprived of their obnoxious features, being allowed in other respects to remain in force; that before interlocutory orders can be restrained, upon such application, they must have both of the features above referred to, that is, must-trench upon final relief, and must be of a nature to be actively enforced; neither feature alone being sufficient to justify interference, because, even if the order trenches upon final relief, it may await correction upon appeal, if not of a nature to be actively enforced, and, on the other hand, it may be of a nature to be actively enforced, yet not amenable to supersedeas, because it does not have the color of final relief; that all orders appointing receivers require and necessitate action, that is, from their very nature, must be actively enforced, to be at all efficacious,’yet they are not on that account open to review on application for supersedeas, but, before becoming so reviewable, must go further, and contain some element that should only appear in a decree granting final relief, that is, a final decree upon the merits of the controversy involved in the pleadings.

The race-mare case (Black v. Dodge, supra), and the case brought by the minority stockholders of a corporation against the corporation and the majority of the stockholders (Downing v. Dunlap, etc., Coal Co., supra), for the purpose of obtaining control of the corporation, and wherein the said minority stockholders were given immediate control in advance of final hearing by the chancellor, by means of and in the form of an order, appointing a receiver of the corporation, are examples of the unlawful use of the poAver belonging to all the courts of this State, and to their judges, to appoint receivers, because the order referred to really determined in advance of final hearing matters that should have awaited and should have been reserved for that hearing.

It seems that orders disturbing the possession of real estate pending a litigation concerning that class of property, when the title is involved in the litigation, are always to be treated as, if not wholly pertaining to final relief, yet in the nature of final relief, and are always reviewable, upon application for supersedeas; but notwithstanding they are of such a nature, this court, upon so reviewing them, will allow them to stand until final hearing, if it can be seen, under the facts of the special case, that good and substantial reasons appear for such action, and that no abiding injury is done to the party deprived thus temporarily of possession. Cone v. Paute, 12 Heisk., 508.

In the case of Richmond v. Yates, supra, it does not appear that any reason whatever was made to appear for the appointment of the receiver, further than that the chancellor was of the opinion, apparently, from the testimony introduced by the defendant and cross-complainant in that case, that he was entitled to the land, and that the original complainant had no interest in it; and this in advance of any testimony offered in the cause by the complainant, and while she yet had the legal right to present her testimony — a clear case of final action in the form of an order appointing a receiver.

In the case of Cone v. Paute, supra, the reason given was that the taxes were not kept down, but were being allowed to accumulate and incumber the property, and this was held to be a sufficient reason.

In Davis v. Reaves, it was assumed as settled law that a receiver in such cases could be appointed upon a proper showing. It seems that the question there was as to whether the receiver should be appointed to protect rents, and the court, not being able to see that any special amount would be due, declined to make the appointment.

In State v. Allen, supra, it was said that the court would be very slow to appoint a receiver in this class of cases, hut this implies that upon a strong showing the appointment might he made.

In Cassetty v. Capps, supra, the receiver was denied; that being really, as stated by Cooper, J., an ejectment suit brought by one tenant in common against the other; but it was intimated that, if the defendant had denied the rights of his cotenants to their shares of interests in the land, and there had been a sufficient allegation of insolvency, a receiver might be appointed in such a case.

Pearson v. Gillenwaters, supra, does not bear upon the special phase of the matter now under discussion, and need not be further noticed. The same is true of Morford v. Hamner, supra.

So, we think, it may be stated as a settled rule in this class of cases that a receiver may be appointed to take charge of the land in controversy pending the litigation over the title, upon a proper state of facts being made to appear, showing the necessity for such action, but that the action of the lower courts in such cases is subject to review by this court upon application for supersedeas, or upon motion to discharge a supersedeas granted by one of the judges of this court, and that upon such review this court will determine the sufficiency, in law, of the grounds on which the judge of such inferior court acted, and will either affirm or disaffirm, as it may be found by this court that such grounds are sufficient or the contrary. But in determining whether the facts exist as found by the lower court, this court will give great weight to the conclusion of the lower court. Cone v. Paute, 12 Heisk., 508.

Before applying the foregoing principle to the facts of the present case, it is proper to observe that it is not intended to in any wise impair the rule that this court has the right, on final appeal or writ of error, to review orders appointing receivers, just as it has power to review any other interlocutory order of a lower court, as well as the final decrees and judgments of such courts (such were the cases of Henshaw v. Wells, 9 Humph., 568, 570; Williams v. Bartlett, 4 Lea, 624, 625; Bidwell v. Paul, 5 Baxt., 693), or to impair the rule that the judges of inferior courts have the right to appoint receivers of personal property, for care, management, and safe-keeping, and that such orders can not be interfered with or restrained by this court upon petition for supersedeas, or the rule that the judges of inferior courts have the right to appoint receivers in cases where mortgages have been executed upon real or personal property, and a showing is made that it is necessary for the preservation of the property that a receiver should be appointed, or it is made to appear that the corpus of the estate is insufficient to pay the mortgage debt, and the mortgagee is insolvent (Williams v. Noland, 2 Tenn., Ch., 151), or that taxes are unpaid and accumulating, and that in such cases this court can not restrain such orders upon application for supersedeas (Williams v. Bartlett, 4 Lea; 624, 625; Bidwell v. Paul, 5 Baxt., 693; Bramley v. Tyree, 1 Lea, 531-533). But, as already stated, neither the inferior courts, nor the judges thereof at chambers, can appoint receivers of either real or personal property, Avhether under mortgage or not, by orders containing provisions applicable only to final decrees or judgments, and capable of active enforcement; and this court can, upon application for super-sedeas, examine any interlocutory order of the inferior courts for the purpose of determining whether it contains such objectionable features, but, upon finding that it is not amenable to such objection, this court can do no more than to dismiss the petition and adjudge the costs thereof. On the contrary, if upon such examination the objectionable features referred to are found to exist, the court will restrain their enforcement.

Oases involving title to real estate, as we have already pointed out, stand in a distinct class. This special phase of the question we have already discussed. To this class belongs the case we now have for decision, and we shall now briefly apply the principle ascertained to the facts of this case.

The facts on which the chancellor based his action were, in substance, that the complainant had shown an, equity entitled to consideration upon an application for the appointment of a receiver, in the fact that tbe merits bad been twice determined in his-favor, tbe finding in each instance having been set aside upon a merely technical point; that tbe defendants bad committed waste npon tbe land, in the-destruction of valuable timber; that tbe defendants-bad so cultivated and managed tbe land as that it; bad washed into gullies and boles and bad beem greatly lessened in value, and would probably continue to be injured if allowed to remain in their-possession, and that it was essential to tbe preservation of the property that it should be placed in the* bands of a receiver; and, finally, that tbe defendants-Avere insolvent. Tbe first point, as to tbe equity arising out of tbe result of tbe former trials, is indisputable. As to tbe second point or series of facts, the-defendants deny all but tbe charge of cutting valuable-timber (denying Avaste, however, in general terms) and support their denial by tbe affidavit of defendant, J. T. Akin. Tbe affidavit of defendant Akim also, in terms, denies tbe charge of insolvency, but.does not deny tbe making of tbe mortgage to bis son-in-law, and that it contained all of bis personal property. On this matter be contents himself with tbe-averment that tbe mortgage debt is just. In addition, it is a fair inference from tbe record that defendant Akin has no other real estate, outside of the-real estate in controversy, except tbe one-twenty-eighth interest purchased from D. O. Andrews. The-only fact upon which there is a square denial, and¿ upon which the complainant makes no showing other than his own affidavit, is as to the method of cultivating the land.

However, taking all of these phases of the matter into consideration, and having regard to the rule fiaid down in Cone v. Paute, supra, that great weight must be given to the finding of the lower court in such a matter, we can not say that it would be proper to grant a supersedeas in this case or that the chancellor =acted erroneously in appointing the receiver. From all that appears, his action seems to have been dictated by a sound discretion, and is in accord with “the ends of substantial justice” (Shannon’s Code, sec. 5549), .looking only to the preservation and care of the property pending the litigation, so that the successful “party, whichever of the two it may be, shall receive filie land undiminished in value.

Therefore the application for supersedeas is denied.

Case Details

Case Name: Troughber v. Akin

Court Name: Tennessee Supreme Court

Date Published: Dec 15, 1902

Citation: 109 Tenn. 451

Court Abbreviation: Tenn.