Smith v. Lowery

The opinion of the Court was delivered by Mr. Justice Jones. The complaint in this case seeks to-set aside, for alleged irregularities, a tax sale of land and deed thereunder, and to restrain the defendant, claiming [494] under said deed, from collecting the rent from plaintiff’s tenant in possession, or in any manner interfering with said tenant’s crop on said premises. The defendant answered, denying the alleged irregularities in the tax sale, and claiming title under said deed. 'Upon hearing return to* a rule to show cause why the defendant should not be enjoined as prayed for, Judge Watts granted an order, appointing G. J. Redfearn, clerk of the Court, as receiver of the rents and profits of said premises, pending the litigation. From this order the defendant appealed upon the following grounds: I. Because Ms Honor erred in appointing a receiver of the land in dispute, when the rule to show cause only required the defendant, Lowery, to show cause why an injunction should not be granted against his interfering with the rents of 1898. II. Because the action as set forth by the pleadings was merely an action at law, and did not warrant the appointment of a receiver. III. Because the Court has, by its order, on a preliminary motion, deprived defendant, Lowery, of the possession of land to which he is presumed to* have title, before the question of title has been tried, and appointed a receiver until the trial of the cause, upon a rule to show cause why an injunction should not be granted against collecting rents for 1898, and nothing else, and' thereby committed error. By an order of this Court made after due notice, the case was recommitted to the Circuit Court for amendment by a statement from the trial Judge as to what occurred before him when the order appointing a receiver was made. Pursuant thereto the trial Judge reported as follows: “After a full hearing of the case, I announced that ! would grant the restraining order, and directed the plaintiff’s attorneys to prepare an order to* that effect. I then suggested to counsel on both sides that inasmuch as this land had once been sold for taxes, and the case possibly would not be heard until the taxes were due again, it seemed to me that it would be better to let some one collect the rent, and rerent the land and [495] pay the taxes when due, and that the money be retained in the hands of the Court until the final hearing of the cause. The defendant’s counsel stated that they did not think that I should grant an injunction in the case; 'but inasmuch as I had decided to do so, they thought that that was a good' suggestion, and they were willing for it to take that course, and they were willing that a receiver be appointed for that purpose. Thereupon, after some discussion as to the value of the rents, the plaintiff’s counsel was asked tO1 prepare the order which was passed in the case, and it was at the suggestion of the defendant’s counsel that the value of the rents was fixed.” From this statement, which we are bound to accept as true, even though it may not accord with recollection of appellant’s counsel, it appears that the appointment of a receiver to‘ collect the rents was made by consent of appellant’s counsel as a substitute for an order restraining defendant from collecting the same, which order the Court had determined tO' make. This consent was a waiver of any objection that the appointment of a receiver was not authorized by the pleadings, and was not duly noticed. It is well settled that an appeal will not be entertained from an order by consent. The judgment of the Circuit Court is affirmed.