Cofer v. Echerson

Woodward, J.

— This appeal is from the appointment of a receiver. The action is in the nature of ejectment, to obtain possession of the land. In the inquiry as to the propriety of appointing a receiver, the whole case will be looked at.

We do not notice the question whether a receiver can be appointed in a mere action at law, any farther than to prevent'silence being construed into an assent to the affirmative of the proposition. So far as there may be a question, it is left open.

There are no equitable proceedings pending in relation to the property, which, besides the land itself, consists of a grist and saw mill, except this application for a receiver. There is a contest as to the right of possession, and this is intimated by an action at law for the recovery of the same. The petitioners present no peculiar circumstances, nor any of particular alarm or danger. The defendant is in possession, who purchased from the school fund, and who says in his answer, that he made the improvements, and that he is, more than any one else, interested in their preservation and care, since they constitute his support, and are worth much more than the incumbrances upon them. The petitioners represent only, that they believe him to be insolvent, and that the estate and mills cannot be left in his possession without loss and injury to the plaintiffs. In short, the only reason urged for the appointment of a receiver, is the alleged insolvency of Echerson. But Mr. Story in 2 Equity Jurisprudence, section 836, says that mere poverty is not, of itself, sufficient ground. And fur- *505 flier, it- does not seem to be the practice of the courts to appoint, when the controversy is upon a mere question of legal right, or when the party can assert his right by a direct action at law, as for possession. 2 Story’s Equity, section 828, et seq.; 2 Dan. Ch., chapter 38. Again: the court does not appoint, unless it believes, so far as there appears, that the applicant will recover. 2 Dan. Ch., chapter 33, 1954; 2 Story’s Equity, chapter 21.

In the present case, there appears to be some obstacles to the plaintiffs’ recovery, as now appears. They hold a bond for a conveyance from Snell and Butterworth, which gives them the possession. But S. and B. did not possess this right. Their contract with Echerson gives them the power, upon his default, to declare the contract forfeited, and to take possession. This requires an action on their part,^and the case does not show any such act — any notice putting an end to the contract. Fulwider v. Wilford, Morris, 323. Snell and Butterworth, therefore, had not yet acquired a perfect right to possession against their vendee, Echerson; and consequently they could not convey such a right to the plaintiff.

Eor these reasons, without looking for others, we are of opinion that the receiver should not have been appointed, and the order is therefore reversed, and the cause remanded.