Wilson v. Wilson

1 Barb. Ch. 592 | New York Court of Chancery | 1846

The Chancellor.

The plea is so manifestly bad as not to admit of an argument, and must therefore be considered as frivolous. There is no pretence that there was any defect of parties at the time of the commencement of this suit. For no order for the appointment of a receiver had then been made; and the complainant in the creditor’s suit was made a defendant in this bill of foreclosure. Even if the subsequent appointment of a receiver had constituted a valid defence, it could not have been pleaded as a bar to the suit generally, but should have been pleaded in bar of the further continuance of the suit merely; in analogy to the form of pleading in similar cases in suits at law. (Le Bret v. Papillon, 4 East's Rep. 502. 1 Chitty on PI. 7th Lond. ed. 578, 688.) The matter pleaded in this case, however, is no bar, even to the further continuance of the suit; as the suit, which was properly commenced, is neither bar-reel nor-abated by- the appointment of'a receiver of one of the-defendants pendente lite. At most, it can only render the suit, defective, so as to make it irregular for the complainant to proceed until the receiver is brought before the, court, by a supplemental bill in the nature of a bill.ofrevjvor, The facts pleaded, therefore, did not constitute the.propér subject-of a plea of any kind. If the suit had become so defective that it was improper for the complainant to proceed- until the receiver appointed pen-, dente lite was brought before the court, the proper course for the defendant Nowal would have been to move the court for-an order, on due notice of the. application, that the complainant bring the receiver before the court, by a supplemental bill in= the. nature of a bill of revivor, within such time as might be prescribed by the vice chancellor for that purpose, or that the complainant’s bill be dismissed; and' that in the meantime, all proceedings upon the original bill be stayed.

■ I am inclmed to the. opinion, however, that in this case.fhe parties in interest are sufficiently represented to render it unnecessary to file a supplemental bill, to bring the receiver before the court, in order to make the decree binding upon him as the assignee of the equity of redemption pendente lite. At law, an ordinary receiver was not considered as having the legal title, so as to authorize him to institute a suit, in his own name for any debt or demand transferred to him, or to the possession or control of which he was entitled under- an order of this court, until the, act of April, 1845, in relation to the powers of receivers and of' committees of lunatics and habitual drunkards. (Laws of 1845, p. 90.) And even that act does not appear to be broad enough to transfer the title.of real estate to the receiver, by the mere order of the court, and without an actual, conveyance from the party to the.suit in. whom such legal title is vested. So far as the title to the equity of redemption, is concerned, the receiver, to whom D. Wilson has transferred, that- title, under the order of the court in the creditor’s suit, pending this suit of.foreclosure, may properly.- be considered as a purchaser or grantee of D. Wilson pendente lite; so that the purchaser, at the master’s ^aloof the mortgaged' premises, will get a good title at- law urider the decree. And as the real parties in interest, for whose benefit that receiver was appointed—the complainant and the defendant in the creditor’s suit—are both before the court upon this bill of foreclosure, and are perfectly competent to protect their rights in relation to the equity of redemption, this court would not permit its officer to disturb the title of the purchaser under the decree of foreclosure, by a bill to redeem for their benefit. For this reason it would be a useless expense to compel the complainant to bring the receiver before the court by a supplemental bill in the present case.

The counsel for the respondent states, however, that he believes his client has a good defence to the suit upon the merits, which he wishes to avail himself of by an answer to the-bill. The proper time to state the existence of such a defence is when the motion to overrule the plea as frivolous is made; and by an affidavit of the defendant showing the fact of such defence, and the nature thereof. But as this was a question of practice which- was not fully settled, I shall allow the respondent to put in an answer to the bill, on the usual terms;. provided such answer is put in upon oath.

The order appealed from, must be reversed, with costs; and the plea of the defendant Nowal must be overruled as frivolous, with costs of the motion. And the defendant must pay these costs and put in his answer, upon oath, within thirty days after service of the taxed bill of costs, or the bill may be taken as confessed upon filing an affidavit showing the default; unless the vice chancellor, upon application to him, shall think proper to allow the defendant Nowal further time to put in his answer.