McAllister v. Harman

Buchanan, J., delivered the opinion of the court. One of the questions involved in this appeal is whether a [547] receiver of a court who is directed to collect purchase money due for land, the sale of which had been confirmed in the cause can, under his authority to collect, institute suit in another court to set aside an alleged voluntary and fraudulent conveyance of other land made by one of the purchase money debtors in order to subject it to the payment of the debt which the receiver is ordered to collect. 'Che general rule is that a receiver, who is a mere ministerial officer of the court by which he is appointed, must have its consent and authority, either general or special, as a condition precedent to institution of a suit or other legal proceeding. Davis v. Snead, 33 Gratt. 709; Reynolds v. Pettyjohn, 79 Va. 331; and Smith on Receivers, sec. 69. The receiver, McAllister, had no special authority to institute this suit, nor is there anything in the decree directing him to collect, from which any such authority can reasonably be implied. The decree must be construed in the light of the facts as they then existed. The sale was confirmed by the same decree which ordered the receiver to collect. Only part of the purchase money was due. There was nothing in the record to show that the land was not worth the amount for which it had been sold, and that upon a resale, if one had to be made, it would not bring that sum. Upon this state of facts the court would not have been justified in giving the receiver authority to institute a suit to set aside an alleged voluntary or fraudulent conveyance which might involve large expenditures in the way of counsel fees and costs, and be wholly unnecessary; and clearly authority which ought to have been refused if ashed for, cannot be implied from the order which was made. The other question is whether the other complainant in the bill, who was the owner of and entitled to a part of the proceeds of the land sold, had the right to maintain this suit. We are of opinion that he had. It is true that the purchasers of the land were contesting the payment of the purchase money on a rule [548] made against them to show cause why the land should not be resold for the money which the receiver was directed to collect, and it might be that the purchasers would be released from their purchase. In that event, he could recover nothing in this case. On the other hand, if it were held that the purchasers were liable, and the proceeds of the land in that case proved insufficient, then this suit was necessary under the allegations of the bill in order to protect the rights of the complainant. The bill alleges that one of the purchasers was insolvent, and that the other had made a voluntary and fraudulent conveyance of his lands in the months of September and October, 1894—nearly five years before the institution of this suit. If those deeds were only voluntary, and not fraudulent, the complainant might be barred by the statute of limitations from subjecting the lands thereby conveyed to his debt, if he delayed bringing his suit until after the controversy in the other cause was settled. The pendency of one suit may be set up to defeat another for the same matter, but in order that this may be done it is necessary, among other things, that in both suits the parties shall be the same, or at least shall be such as represent the same interests; that the first suit shall be for the same matter as the second (though the second suit need not be for the whole matter embraced in the first), and that the whole effect of the second suit shall be attainable in the first. 1 Dan. Chy. Pr. 632, &c. (side page); Story’s Eq. Pl., secs. 737 to 739; Watson v. Jones, 13 Wall. 679. Tested by this rule, it is very clear that the suit pending in the Circuit Court for Bath county could not defeat this suit. The parties were different, and did not represent the same interests, the objects of the suits were not the same, and the whole relief sought in this suit was not attainable in the other. The alleged voluntary or fraudulent alienees of the land sought to be subjected in this suit were not parties to the other, and could not be made parties to it. They had no interest in, or connection with., [549] its subject matter, and no decree could be made in it setting aside the conveyance which this suit was brought to set aside. It follows, therefore, from what has been said that so much of the decree appealed from is erroneous as sustained the plea in abatement as to the right of the complainant Glendye to maintain this suit, and as to him the decree must he reversed, and this court will enter such decree as the Circuit Court ought to have entered. Reversed.