Blair, Com'r, &c. v. Core.

• Decision Date: 01 September 1882
• Court: West Virginia Supreme Court
• Parties: Blair, Com'r, &c. v. Core.

20 W.Va. 265

Blair, Com'r, &c.

v.Core.

Supreme Court of Appeals of West Virginia.

Submitted August 10, 1882

Decided September 1, 1882.

1. A special commissioner appointed by a decree of court is simply the creature of the court, and he has no powers except those conferred upon him by the order of his appointment and the course of practice of the court, (p. 268.)

2. A person, who appointed by a decree of court special commissioner to make sale of lands under such decree and take bonds for deferred payments on said lands, and who makes such sale and takes bonds payable to himself as such commissioner, when said sale is reported to court and confirmed, has no authority to collect said sale bonds unless the decree conferring the appointment or some subsequent decree or order of court gives him authority to do so. (p. 269.)

3 A special commissioner, who sues to enforce the payment of bonds executed to him as commissioner, must aver in his bill his appointment and authority to collect said bonds, or the bill will be held insufficient on demurrer, (p. 271.)

4. An exception, to an answer for insufficiency is in the nature of a demurrer and admits the truth of the matters excepted to; and it is error for the court to sustain an exception to a matter alleged in the answer, which, if true, would be a proper ground of defence to the bill in whole or in part. (p.).

Appeal from and supersedeas to a decree of the circuit court of the county of Ritchie, rendered on the 16th day of November, 1881, in a suit in chancery in said court then pending, wherein R. S. Blair, special commissioner, &c., was plaintiff, and A. S. Core and. J. B.' hall am, committee, &c, were defendants, allowed upon the petition of said Core.

Hon. Thomas J. Stealy, judge of the fourth judicial circuit, rendered the decree appealed from.

The facts of the case are stated in the opinion of the Court.

W. L. (Me and W. N Miller for appellant cited 27 Gratt. 824; 8 W. Va. 210 and 29 Graft, 347.

R. S. Blair for appellee cited 10 W. Va. 206; 21 Gratt. 227; 9 Gratt. 336-888; 2 Gratt. 198; 13 Gratt. 195; 28 Gratt. 708 and Sands Eq. 304-305.

Snyder, Judge, announced the opinion of the Court, This suit was instituted in the circuit court of Ritchie county on the 21st day of October, 1880, by R. S. Blair, special commissioner, against A, S. Core and John B. Hal-lam, committee, &c, The object of the suit was to enforce the vendor's lien on certain lands sold to the defendant, Core, by the plaintiff as special commissioner under a decree of said court in the suit of Rosenheim v. Hlitcheox and others. The defendant, Core, demurred to the bill and afterwards filed an answer and subsequently an amended answer. The plaintiff filed exceptions to each of said answers. The court overruled the demurrer to the bill and sustained the exceptions in part to the original and in whole to the amended answer; and the plaintiff replied generally to the answers.

The cause came on to be beared on the 16th November, 1881, and the court by its decree ascertained the amount of purchase-money still due and directed a commissioner, appointed for the purpose, to sell the lands to satisfy said purchase-money. From this decree, on the petition of the defendant, Core, an appeal with supersedeas was allowed by this court.

The principal ground of complaint in this court is, that the circuit court improperly overruled the demurrer to the plaintiff's bill. It is urged, that the lull shows no authority in the plaintiff to bring this suit, and that therefore the demurrer should have been sustained. The bill avers, that the plaintiff wras appointed special commissioner by the circuit court of Ritchie county to make sale of certain lands under a decree of said court made in the suit ot Rosenheim v. Hiteheox cf als.; that he made the sale, and the defendant, Core, became the purchaser and executed to plaintiff as commissioner bonds for the deferred payments of the purchase-money; that said sale was confirmed by the court; and that said bonds are unpaid and a lien on said lands. There is no averment, that the plaintiff was authorized to sue upon or collect said bonds, and no such authority is given by any of the decrees filed as exhibits with the bill. The question then to be decided is: Can a bill filed by a special commissioner to enforce the payment of bonds executed to him as such commissioner be maintained without an averment, that lie is authorized by a decree or order of the court to sue upon or collect said bonds?

The office of a special commissioner under the statutes and rules of chancery practice of this State is the same in many cases as that of a receiver under the general chancery practice in England and in many of the States. Excluding that class of commissioners known as commissioners in chancery, whose duties are to take, state and report accounts, the only difference in the practice in this State seems to be, that in cases of sales the officer appointed to execute the orders of the court is designated a special commissioner, while incases, where the duties are more general and comprehensive, he is designated receiver either general or special; the former being merely a species of the latter. Our statute provides, that courts "may from time to time appoint commissioners for executing their orders and decrees," &c. Acts 1872-8, chap. 138, sec. 1. They also provide, that "each circuit court may appoint a general receiver, whose duty it shall be, unless otherwise specially ordered, to receive, take charge of and invest in such stock or other security, as the court may specially order and in the manner required by such order, all moneys heretofore paid into court or into bank or other place of deposit and now standing subject to the order of such court, and all moneys so paid under any judgment, order or decree of court, and also to pay out or dispose of the same, as the court may order or decree; and to this end the general receiver shall have authority to check for, receive and give acquittances for all such moneys." Code, chap. 133 § 15.

There are other provisions in our Code relating to general receivers, but in all of them the authority of the receiver is as guarded and restricted as it is in the section given. The authority of a special commissioner is certainly not less restricted and limited than that of a general receiver. However this may be, it is quite evident, that the powers conferred and the duties imposed upon the commissioner in this case in no respect differ from those of a receiver in like cases. It is therefore important to determine, what are the powers and duties of receivers in such, cases.

A receiver is simply the creature of the court; and he has no powers except such, as are conferred upon him by the order of his appointment and the course and practice of the court, The money or property in his hands is in custodia legis for whoever can make out a title to it. It is the court itself, which has the care of the money or property. The receiver has very little discretion. In Booth v. Clark, it was expressly field, that "he must apply to the court for liberty to bring or defend actions." 17 How. 331; Blunt v. Glitherow, 6.Yes. 799.

In Davis v. Snead, 33 Gratt. 705, it was decided, that a person appointed by a court of equity to collect the purchasemoney for lands sold by him as...