Woodburn v. Smith

Atkinson, Justice. To a correct understanding of the questions made in this case, it is only necessary to i’efer to the official report, and to emphasize mentally the fact, that under the terms of the sale of the property, in pursuance of the decree authorizing the same, the title to the- property was reserved in the receiver until the full payment of the purchase money. It will be observed that the property claimed by this defendant, having been in the possession of the receiver as a part of the assets of Laurance & Jackson, ivas in fact sold by the receiver, under an order of the court, the receiver reserving title until the purchaser had fully paid the purchase money and until confirmation of his sale by the chancellor. The possession of the purchaser then was, to all intents and purposes, the possession of the receiver. It was the duty of the receiver to maintain the possession of his vendee, and in furtherance of that duty, it ivas his right to apply for an injunction in order to protect that possession. The remedy of a person claiming title to property adverse to a receiver, is not to regain it by an act of trespass, hut to apply to the court for redress, or for leave to sue the receiver. And in thus restricting claimants or third parties from interfering with the receiver’s possession without leave, the rule is applied regardless of whether such pei’sons claim paramount to or under the right which the receiver was appointed to protect. It is frequently necessary for a receiver to pray for an injunction to restrain any unauthorized interference with the property in his possession, and the granting of such an injunction in such cases is a necessary incident to the [246] power of appointing receivers. High on Injunctions, §§140, 747; Marshall et al. v. Lockett, 76 Ga. 289. We are not advised by the record upon what ground the judge rested his judgment dismissing this petition upon demurrer, but upon a careful consideration of its terms, it appears to state fully such facts as entitles this receiver to the relief he prays at the hands of the court. Let the judgment of the court below be Reversed.