Neighbors v. . Evans

Clarkson, J. The only exception and assignment of error made by defendant is that the court below erred in signing the order appointing a receiver. We think this must be sustained. N. O. Code 1935 (Michie), section 860, is as follows: “In what cases appointed — A receiver may be appointed (1) Before judgment, on the application of either party, when he establishes an apparent right to property which is the subject of the action and in the possession of an adverse party, and the property or its rents and profits are in danger of *553 being lost, or materially injured or impaired; except in cases where judgment upon failure to answer may be bad on application to the court,” etc. To sell lands to make assets: Section 79 is as follows: “The petition, which must be verified by the oath of the applicant, shall be set forth, as far as can be ascertained: (1) Amount of debt outstanding against the estate. (2) The value of the personal estate, and the application' thereof. (3) A description of all the legal and equitable real estate of the decedent, with the estimated value of the respective portions or lots. (4) The names, ages, and residences, if known, of the devisees and heirs at law of the decedent.” In McNeill v. McBryde, 112 N. C., 408 (411-12), it is said: “We think, however, that the petition is deficient in that it does not comply with section 1437 of The Code (now C. S. 79), which requires that it shall set forth The value of the personal estate and the application thereof/ It simply states that the personal estate 'is wholly insufficient to pay his (intestate’s) debts and the costs and charges of administration.’ The purpose of the statute, in requiring the particulars therein mentioned to be stated in the petition, was to enable the court to see whether a sale was necessary; but the present allegation wholly fails to give any such information. It is important that the requirements of the statute should be observed, and we must sustain the demurrer upon this ground. Shields v. McDowell, 82 N. C., 137.” In the complaint is the following: “And the personal .estate of said E. G. Taiton is not sufficient to pay said debts.” We think this allegation not sufficient under the statute. Then again, the defendant denies this statement and alleges: “The said E. V. Neighbors, executor, took into his possession immediately upon the death of the said E. G. Taiton, all of his moneys, notes, and personal property, amounting to approximately $7,000.00, much more than sufficient to pay all the debts and obligations of said testator, and that said Neighbors has made no accounting for any portion of said personal estate whatsoever.” In Parker v. Porter, 208 N. C., 31 (34) it is stated: “While it is well settled that an administrator has the right, and that it becomes his duty under certain conditions, to apply for license to sell the real estate of his intestate to make assets with which to pay debts, it is necessary that the personal property shall first be exhausted. When this has been done and it has been ascertained that the personalty is insufficient to discharge the debts, resort may be had to the realty. The personalty, however, is always the primary fund for the payment of debts. C. S. 74; Shaw v. McBride, 56 N. C., 173; Clement v. Cozart, 107 N. C., 697.” Wadford v. Davis, 192 N. C., 484 (487). *554 It will be noted that the statute (C. S., 860, sec. 1) says: “When he establishes an apparent right to property,” etc. Jones v. Jones, 187 N. C., 589 (592). We see no sufficient allegations in the complaint or evidence in the record to justify the appointment of a receiver. A receiver may be appointed where a party establishes an apparent right to property, and the person in possession is insolvent, and ordinarily a receiver will be appointed to take charge of the rents and profits during the pendency of the action. Plaintiff does not come within the above rule. The courts look with jealousy on the application for the appointment of a receiver. It is ordinarily a harsh remedy. The right to relief must be clearly shown and also the fact that there is no other safe and expedient remedy. In some cases a bond is allowed the defendant instead of the appointment of a receiver. Woodall v. Bank, 201 N. C., 428. On the entire record we think a receiver should not have been appointed. For the reasons given, the judgment of the court below is Reversed.