Atkinson v. Foster

Moran, P. J. The order appealed from is interlocutory, but is reviewable under section 1 of “ An act to provide for appeals from interlocutory orders and granting injunctions or appointing receivers,” in force July 1, 1887. The question made is as to the power of the court to compel appellant to execute to the receiver a power of attorney enabling him to vote the stock in such manner as should seem to him to be for the best advantage to the property. A receiver appointed on a creditor’s bill does not merely take property and hold it for the benefit of the party finally successful, as is the case where the dispute is over the title to the property. The receiver in a creditor’s suit is appointed to take the property of the judgment debtor and dispose of it and apply the proceeds in satisfaction of the judgment under the direction of the court, and, as is said in Beach on Deceivers, See. 639, “it is a well established rule of law that, as to all the property and rights of property of the judgment debtor and as to all lawful transactions with his property, the receiver stands only in the place of the judgment debtor.” Where, from the peculiar nature of the property coming to the hands of the receiver, some further conveyance than the usual assignment from the debtor to the receiver is necessary to vest in the receiver the complete legal title and enable him to dispose of the property to advantage, and to protect it while he holds it, the court 62! necessitate must have the power to compel the judgment debtor to execute such further conveyance. From the allegations of the petition it appears that an exigency liad arisen, in which, without the proxy to vote the stock, the receiver would be unable to protect it against the efforts of the judgment debtor himself to render it worthless. We think that under such circumstances the court had the power to require the judgment debtor to execute any instrument, which was necessary for the protection of the res. It was just and proper that the stock should be so used as that its value should not be diminished or destroyed, and it is well known that officers of a corporation who desire to accomplish that end can soon wreck a corporation, and render stock in it of no value. The receiver was the one to protect the stock by voting it at the election, and it was proper to clothe him with the legal means of doing so. The power of the court to compel the execution of a proxy or power of attorney to vote stock, has been exercised, and rests on the same foundation as its power to compel the execution of any other instrument. In Vowell v. Thompson, 3 Cranch, C. C. 428, a bill was filed to compel the mortgagee to give to the mortgagor a power of attorney to vote .on certain stock at an election of directors of the corporation, and the court granted the relief. We are of the opinion that the court had full power to enter the order appealed from, and that, under the circumstances,it was discreetly and providently exercised. The order will therefore be affirmed. Order affirmed. Gabnett, J., took no part in the determination of this case in this court.