Brady v. Furlow, Price & Furlow

By the Court. Benning, J. delivering the opinion. By virtue of the agreement between Wright Brady and his brother, Wright Brady acquired the legal title to the fund in question, for the purpose of protecting himself against certain liabilities which he was under, for his brother. At the time when the motion was made to compel him to turn over the fund to the Receiver, a part of these liabilities still subsisted and the total amount of this part, was indefinite ; nor was there any attempt made by the movants to ascertain its precise, or even its proximate amount. - The movants did not offer to relieve him from this part. Such being the facts, the legal title to the fund, still remained in him. And if the legal title to the fund was in him, he ought not to have been compelled to yield the possession of the fund to a Receiver. Under such circumstances, the rightful executor, if there had been one, could not have recovered the fund from him ; and higher rights could [616] not have been imparted to a Receiver, than those which such an executor would have had. If it had appeared, that the fund was sufficient to protect Wright Brady and leave a surplus, it might'have been a question, whether it would not be proper, that that surplus should be ordered into the hands of the Receiver; but this does not appear. We think, therefore, that the Court below erred in ordering the fund into the hands of the Receiver; especially, as there is no evidence, that the fund was in danger. Judgment reversed.