Vause v. Woods

SlMEADD, J.: The primary object of the bill is to vacate and set aside sundry conveyances of real estate made by William G-. Yause, in his life-time, to several of the defendants, as fraudulent and void, against the complainant, his creditor (the personal effects had already been seized in execution by the sheriff, and were replevied by claimants, as to which suit at law was pending).. An appeal has been prosecuted from the order of the chancellor, appointing a receiver to take into possession the lands alleged to have been conveyed in fraud of the complainant, and of his intestate in his life-time. The only question here is as to the propriety of this order in the circumstances of the case. The defendants, or several of them; have answered the bill, denying the fraud, and claiming the lands, or parcels of it, as purchasers, innocently. A great deal of testimony has been taken, and it would seem that the case was about ready for final hear: ing. The power to make the appointment rests in sound discretion, and the circumstances must show a manifest propriety and fitness to place the fund or property in the custody of the court. Verplank v. Caines, 1 Johns. Ch. 57. The bill, by proper allegations, must lay the foundation for the appointment. Tomlinson v. Ward, 2 Conn. 396. It can only be made at the instance of a party who has an [128] acknowledged interest or a strong presumption of title, and where the property or its rents and profits are in danger of being injured or lost. 1 Bland, 213. As against the legal title, the interposition is with reluctance ; it will only be done in case of fraud clearly proved, and danger to the property. Lloyd v. Passingham, 16 Ves. Jr. 68, which was a case between two claimants of the title. A summary of the doctrine is stated by the chancellor in Mays v. Bose, Freem. Ch. 718, to the effect, that the plaintiff must show a clear right to the property os that he has some lien upon it, or that the property constitutes a special fund, to which he may resort for satisfaction, or that the property is exposed to loss or waste. It was said by Lord Eldon, in Jones v. Pugh, 8 Ves. 70, that if real estate is assets, and the court cannot avoid seeing that it and the rents and profits must be responsible, it will put a receiver on the estate. Walker v. Downie, 2 ib. 170. • By the laws of this state, the property of a decedent are chargeable with his debts, primarily the personalty, and, secondarily, the lands ; not, however, in the sense that creditors have a specific lien, but in the sense that creditors can subject both to their debts. The descent to the heir, or the right of the 'devisee, is liable to be divested, if the real estate is required to pay debts. The gravamen of the bill is, that the deeds, or other instrumentalities by which the real estate of William GK Yause was passed to, and vested in, the defendants, or some of them, was prompted by covin and fraud, to evade the debt due to the complainant’ s intestate; and, therefore, said real estate is as much bound for the debt as though such conveyances had never been made. The judgment conferred no lien on these lands. The equity of the complainants is, a right to resort to the lands, by setting aside these conveyances. The title of the defendants is a valid, legal title, as against all others than the creditor. If the property were worth more than the debt, there would be no reason to put the estate in the custody of a receiver, unless the defendants were committing [129] waste, and deteriorating its value. The court will not interpose for a mortgagee, except upon the ground that the property is insufficient to pay his debt, and, therefore, he should, pending litigation, have the rents and income. Ligon v. Bishop et al., 43 Miss. 526. Nor will a receiver be appointed against an executor, on slight grounds; there must be abuse of the trust, or danger of insolvency. Middleton v. Dodswell, 13 Ves. 266. The jurisdiction is exerted as part of the preventive justice of the court, mainly in order that the fund or property exposed to spoliation, and danger of loss, pending the litigation, may be taken charge of by the court, so as to abide the litigation. Where the contest is over the title, the defendant, if he has apparently and ostensibly the legal title, will not be deprived of possession unless upon a very strong case of risk of loss of the property, and inability to respond from insolvency to the decree. We have thought it proper to refer to these general principles which govern the jurisdiction of the court. We think this decree was not made on proper notice to the defendants. Ten days’ notice of such application must be given. Rev. Code 1857, art. 74, 552. At the November term, 1871, the motion for a receiver was, by consent, continued to be heard on the 28th of the month, or otherwise, by agreement of counsel, as to time in vacation. It was not heard on the 28th of November. Not coming on then, it could not be heard regularly in vacation, except by agreement of counsel as to the time, or upon notice, as prescribed by statute. The record recites, that, on the 9th of the ensuing December, the motion was heard, “upon notice given, filed and served.” This evidently relates to the motion made in term time, of which defendants had been duly notified, and which motion had been continued, by adjournment, to the 28th of November. The record does not show that the solicitors for defendants consented to the hearing on the 9th of December, or that they or their clients had notice that a hearing would be had at that day. [130] The one or the other was necessary. Ligon v. Bishop, 43 Miss. 527. For this error the decree is reversed, and cause remanded for further proceedings.