Southern Bank v. Ohio Insurance

Worden, J. This was a petition filed by the appellant, which alleged that on the 12th of October, 1861, the appellant recovered a judgment in the Floyd Court of Common Pleas against the Ohio Insurance Company and one Patterson, for the sum of 10,787 dollars and 48 cents and costs of suit, which judgment remains unpaid; that at the time of the rendition of the judgment, the Insurance company was-the owner in fee of a large amount of real estate in the county of Floyd, of the value of at least 20,000 dollars, on which the judgment mentioned was the first lien of any kind whatever; that on the 28th of October, of the same year, hy the consideration of said Floyd Circuit Court, the affairs of said Insurance company were put into the hands of a receiver, viz.: James M. Haines, who still continues to control the same, under the direction of the Court; that the receiver, as appears by his current report, has in his hands, as such receiver, the sum of 28,000 dollars, which the petitioner claims ought to he applied to the payment of the judgment which is the first lien upon the real estate of the Insurance company. Prayer,, that an order be made directing the receiver to pay the judgment before any of the funds he applied to the payment of any other debts of the corporation. The Court below refused to grant the prayer of the peti [182] tiorier, but directed the receiver- to pay 20 per cent, on certain claims referred to in the report of a master. The appellant excepted to the ruling, and brings the ease here for revision. We have not been furnished with any brief on the part of the appellee, and are not advised upon what ground the case was decided- below. We presume, how'ever, that the decision was not placed upon the ground that the bank had lost her lien upon the real estate in consequence of the affairs of the Insurance company having been placed in the hands of a receiver, and that she -was only entitled to a pro rata share of the assets. The statute provides that, “all final judgments in the Supreme and Circuit Courts, and Courts of Common Pleas, for the recovery of money or costs, shall be a lien upon . real estate and chattels real liable to execution in the county where-the judgment is rendered, for the space of ten years after the rendition thereof,” &e. 2 G. & H. p. 264. On general legal principles, the lien thus created by the statute can not be destroyed by the insolvency of a corporation against which a judgment may be rendered, and the placing of her affairs in the hands of a receiver; and we are not advised of any statute having that effect. 2 Story’s Eq., §§ 829, 830; Hubbard v. Guild, 2 Duer. 685. Although the lien of the appellant was in no manner impaired by the appointment of the receiver, still we do not think any en’or was committed, in the ruling of the Court below. We do not see any sufficient reason for the appellant’s application to the Court for the payment of her judgment out of the funds in the hands of the receiver. For aught that appears the appellant could, and yet can, enforce her claim, and avail herself of the benefit of her lien, in the ordinary mode, by execution, levy and sale of the property on which her judgment is a lien. The appointment of a receiver does [183] not prevent such levy and sale. Albany City Bank v. Schermerhorn, 9 Paige 372; Edwards on Receivers, 146. Such, levy and sale in no manner interferes with the possession of the receiver; and if the purchaser would have to apply to the Court by which the receiver was appointed for possession, the Court would award it, the judgment lien being the oldest. Case in 9 Paige, supra; Ohio, &c. Co. v. Fitch, 20 Ind. 498. B, ‡ li. Crawford, for the appellant. If the funds in the hands of the receiver had arisen from a sale of the land on which the appellant’s judgment was a lien, a different question would have been presented; but such does not appear to have been the case. As the appellant can avail herself of the process of execution and thereby enforce her lien, and as the funds in question have not ai'isen fi’orn the sale of the property on which her lien exists, we see no good x’eason why those funds should be applied first to the payment of the judgment. Per Curiam. The judgment below is affirmed, with costs,