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Rogers agt. Marshall.

of this alleged deed from the sheriff was a fraud on the plaintiff and his ancestor.

(a.) It appears that although Singer purchased as trustee without taking any conveyance during his lifetime, although entitled to it at once if a bona fide purchaser, and Rogers and his family continued in possession, yet that after Singer's death, when Rogers had become insane, the defendants procured this deed, keeping it secret from Rogers' family, and not putting it on record until after his death.

(6.) The pretence of an actual purchase by Singer is · absurd. Who ever heard of a bid of seven hundred and sixty-four dollars and twenty-eight cents? The pretence that it was Singer who paid Maginn and that he became the assignee of the judgment, is without foundation. It is asserted upon mere information, and is directly contradicted by Maginn himself.

(c.) The affidavits in regard to value are irrelevant. There is no proof that Singer paid anything, and the fact that judgments and a lien were on record is no proof that they were owing. The presnmption is that if they were prior liens they would have been enforced.

Third. The statute of limitations is no bar to the plaintiff's recovery.

(u.) As far as the alleged sale and deed under the foreclosure of the mechanic's lien is concerned, this is an action of ejectment which cannot be barred in less than twenty years.

(6.) If it be shown that the sale was an arrangement between Rogers and Singer and that the latter only took a certificate to accommodate Rogers he was a trustee in whose favor the statute does not run. (McDonald agt. May's Executors, 1 Rich. Eq., (S. C.,) 91.)

(c.) Besides, the obtaining of a deed was a fraud on Rogers and his heirs, and in such a case the statute does not run until si x years after the discovery of the fraud. (Ward agt. Van Bokelin, 1 Paige, 100; Sears agt. Shafer, 2 Seld., 268;

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Rogers agt. Marshall.

(d.) The defendants' claim to be mortgagees in possession is entirely inconsistent with a plea of the statute of limitations to an action to redeem, and is a bar to such a defense.

(e.) Again, the deed which it is sought to set aside only became a cloud on the title by being recorded April 5, 1861.

FourthThe appointment of a receiver was proper.

(a.) The plaintiff has established a prima facie title as above shown and there was no denial of the defendant's irresponsibility, or that the rents and profits were being lost and the premises were being allowed to fall into ruin. The case, therefore, came directly within the rule that whenever it is necessary for the preservation of the property ponding the litigation, a receiver should be appointed.(Lawrence agt. Greenwich Ins. Co., Paige, 587; Hamilton agt. Accessory Transit Co., 3 Abb., 255; Edwards on Receivers, p. 18.)

(6.) The fact that the defendants claim to be mortgagees in possession, while allowing the premises to perish and the rents to be lost, is sufficient in itself to justify the appointment of a receiver. When the fund is in danger and there has been negligence or improper conduct by the trustee, the appointment of a receiver is a matter of right. (Jenkins agt. Jenkins, 1 Paige, 243.)

(c.) The cases cited by the appellants do not apply. They were all ejectment cases pure and simple under the Revised Statutes, and were put upon the ground that the statute provisions in regard to redemptions and new trials were inconsistent with the idea of a receiver. Also, that the plaintiff did not claim the rents and profits but damages which no receiver could be appointed to collect. (Thompson agt. Sherrard, 35 Barb., 593.) On the other hand, in the People agt. The Mayor, (10 Abb. 117,) the general term of 1st District distinctly held in an action of ejectment, that although a “receiver would not be generally appointedin such cases, “yet that where some equitable grounds appear, entitling the plaintiff to the rents and profits as such, and that their

Rogers agt. Marshall.

sequestration is necessary for his protection, on account of the insolvency of the defendant, that a receiver may be appointed.” (See cases supra.)

FifthThe order appealed from should be affirmed with costs.

By the Court, CLARKE, P.J. This is totally different from an action of ejectment. It seeks relief on the ground of fraud, mistake and want of jurisdiction in the court in which the proceedings to foreclose the alleged lien of Maginn, were concerned. It clearly presents, therefore, precise grounds for the equitable interposition of this court, and in such cases we never refuse preliminary injunctions and the appointment of a receiver, if the condition of the subject of the controversy requires the aid of these provisional remedies. From the plaintiff's complaint and affidavits, upon which the injuncticn was obtained and the receiver appointed, it is evident that the defendants are irresponsible, that they are collecting the rents, which they are unable to refund and which probably will be lost if they are not restrained.

It appears, also, that the premises, in consequence of their incapacity or neglect, are in a ruinous condition for the want of repairs, and that they will continue to deteriorate if they remain under the control and in the possession of the defendants.

The order should be affirmed with costs.

BARNARD, J. The only question in this case is our power.

The facts established in the papers by plaintiff, clearly entitle him to the relief if it can be given.

In the case of The People agt. The Mayor, (10 Abb., 117) decided by the general term of this district, it was expressly so held.

The order should be affirmed with costs.

Green agt. Buskirk.


HANNIBAL GREEN, plaintiff in error agt. MORRIS S. VAN

BUSKIRK et al.

The act of congress of 1790, declares that the record of a judgment (authenticated in

a particular manner) shall have the same faith and credit, as it has in the state court from whence it was taken. And this court has decided, that congress having declared the effect of the record, by declaring what faith and credit shall be given to it, it is only necessary to inquire, in every case, what is the effect of a judgment in the state where it is rendered. The policy of the law in Illinois will not permit the owner of personal property to

sell it, and still continue in powession of it. If between the parties, without delivery, the sale is valid ; it has no effect on third persons, who in good faith get. a lien on it ; for an attaching creditor stands in the light of a purchaser, and as

such will be protected. As the effect of a levy, judgment and sale of attached property in the state of Illinois

is to protect the attaching creditor, if sued in the courts of that state, and these proceedings are produced for his own justification ; they onght also to produce, when he is sued in the court of another state, for the same transaction, and be justifies in the same manner, the same protection; even appear that the owner of the property attached and the attaching creditor are both residents of another state ; and also that the owner bad, previous to the attachment, given & chattel mortgage upon the property which was unknown to the attaching creditor at the time of the levy of the attachment, although it came to his knowledge be fore the attachment proceedings were completed. (Reversing 8. C. New York Supreme Court, 34 Barb., 457, and the New York Court of Appeals, 2 Keyes, 119. je

December Term, 1868.

IN ERROR to the supreme court of the state of New York. (Remittitur.)

AMASA J. PARKER and LYMAN TRUMBALL, for plaintiffs

in error. John B. GALE and John K. PORTER, for defendants

im error.

Davis, J. That the controversy in this case was substantially ended when this court refused (5 Wallace, 312,) to

Green agt. Buskirk.

dismiss the writ of error for want of jurisdiction, is quite manifest by the effort which the learned counsel for the defendants in error now make, to escape the force of that decision. .

The question raised on the motion to dismiss, was whether the supreme court of New York, in this case, had decided against a right which Green claimed under the constitution, and an act of congress. If it had, then this court had jurisdiction to entertain the writ of error—otherwise not. Green had attached certain iron safes in Illinois, as the property of one Bates, and sold them under his attachment; and being afterwards sued in New York, for the value of the property, by Van Buskirk, who claimed title to them through a mortgage from Bates, he plead in bar of the action these attachment proceedings; but the defense was unavailing, and judgment was rendered against him.

It was insisted on the one side, and denied on the other, that the faith and credit which the judicial proceedings in the courts of the state of Illinois, had by law and usage in that state, were denied to them by the supreme court of New York, in the decision which was rendered.

Whether this was so or not, could only be properly considered when the case came to be heard on its merits; but this court, in denial of the motion to dismiss, held that the supreme court of New York, necessarily decided what effect the attachment proceedings in Illinois had by the law and usage in that state ; and as it decided against the effect which Green claimed for them, this court had jurisdiction under the clause of the constitution, which declares “that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings in every other state ;” and the act of congress of 1790, which gives to those proceedings, the same faith and credit in other states, that they have in the state in which they were rendered.

Thi s decision, supported as it was by reason and author

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