Vincent v. Parker, 7 Paige Ch. 65

Vincent v. Parker

7 Paige Ch. 65 | New York Court of Chancery | 1838

The Chancellor.

It is sometimes necessary to put a receiver upon property, where the interests of the parties to the suit are so connected with those of third persons that the necessary possession of the officers of the court conflicts with the legal rights of such third persons. But the court never divests a previous possession of such third persons unnecessarily. Even where the receiver is in possession, although the court will not permit him to be interfered with without its consent, such third persons are permitted to come in and be heard in relation to their interests. And the court will then make such order for the protection of the rights of such third persons, either through the agency of the receiver, or otherwise, as may be just and equitable. It would therefore have been a matter of course, in this case, to have directed the share of the rents and profits belonging to Halbert in the right of his wife, to be paid over to him by the receiver, had it not been for the opposition of the wife. But if he has been guilty of adultery, as she alleges in her bill, he has forfeited his right to the rents and profits of her estate, by this violation of the marriage contract. And if she succeeds in obtaining a decree for a divorce, she will be entitled, as a matter of course, to her veal estate ; and to the rents and profits thereof from the *67time of filing the bill, so far as he has not actually reduced the same to his possession. Although the husband has denied on oath the adultery charged, the court cannot, upon this petition, settle their conflicting claims without the expense of a reference. The vice chancellor was therefore ■ right in directing the receiver to collect the rents until further order; and in not allowing the husband to receive the same, without the assent of the wife, until such conflicting claims could be settled. I think, however, the vice chancellor should have, directed the share of the rents and profits belonging to the petitioners to be paid into court, to the credit of the suit between Halbert and his wife; subject to such disposition as the court might make thereof, upon the application of either of the parties in that suit. If that is done, the wife, if necessary, can be allowed alimony pendente lite out of that fundor the fund itself may be paid over to the husband, by an order to be made in that suit, upon his giving security to abide the order or decree of the court in relation to the same. The order appealed from, must therefore be so modified as to direct the receiver to pay that share of the rents and profits into court accordingly—deducting therefrom the same allowance for collection as the common agent would have been entitled to if he had collected the same under the former arrangement. But as the litigation upon this appeal is in fact between the husband and the wife, the'parties tp this suit having no interest therein, the costs of both parties on this appeal should be first paid out of that part of the rents and profits in the hands of the receiver. Only one bill of costs, however, is to be allowed on the part of both of the respondents.