Clark v. Fleming

• Decision Date: 08 January 1923
• Docket Number: 22869
• Citation: 130 Miss. 504,94 So. 458
• Court: Mississippi Supreme Court
• Parties: CLARK et al. v. FLEMING et al

94 So. 458

130 Miss. 504

CLARK et al. v. FLEMING et al

No. 22869

Supreme Court of Mississippi

January 8, 1923

1 RECEIVERS. Appointment discretionary, and exercised as auxiliary to attainment of justice. An application for the appointment of a receiver is one which is addressed to the sound discretion of the court, to be exercised as an auxiliary to the attainment of the ends of justice.

2 RECEIVERS. Grounds for appointment stated. In order to obtain the appointment of a receiver, the plaintiff must show first, either that he has a clear right to the property itself, or that he has some lien upon it, or that the property constitutes a special fund to which he has a right to resort for the satisfaction of his claim secondly, that the possession of the property by the defendant was obtained by fraud, or that the property itself, or the income arising from it, is in danger of loss, from the neglect, waste, misconduct, or insolvency of the defendant.

HON. E. N. THOMAS, Chancellor.

APPEAL from chancery court of Washington county, HON. E. N. THOMAS, Chancellor.

Suit by H. H. Clark and others against Albert Fleming and others. From a decree requiring a bond in lieu of the appointment of a receiver under Code 1906, section 629 (Hemingway's Code, section 389), plaintiffs appeal. Affirmed and remanded.

Affirmed and remanded.

B. B. Carmichael, for appellants.

Was this a case warranting the appointment of a receiver? Now, as I understand the law, in cases of the kind at bar, the proponent must come into court with clean hands--he must show, according to the decisions, a clear right to the property, and, the court must have due regard for those who oppose the application. When it is asserted that Fleming has shown neither a clear, or even cloudy right to the possession of the property in controversy, it's putting it mildly. Surely the courts will prevent a man from gaining the apparent title to the rightful property of another through artifice, deception and fraud coupled with a receiver to straddle the roof and collect rents from the occupant.

In addition to the foregoing errors of law warranting a reversal of the order authorizing the appointment of a receiver, we insist that the trial court, especially, at page 28 of the record, erred in refusing to allow the appellants to prove by the appellee, Hampton, that at the time the agent of Fleming first approached him with reference to the purchase of the property of Fleming, he fully advised Allen that it was for Clark's benefit that they held title to the land, and, that they had agreed to give him time to raise the money and take a reconveyance of the land, this right was conferred by sections 1599 and 1593, Hemingway's Code of Mississippi. Too, we think the legal title, at least, remains in Bolden and Hampton, because they only signed the deed to Fleming as individuals and title was vested in them only as trustees as shown by pages 10 and 11 of the record.

In conclusion, it is submitted on behalf of the appellants Clark and his wife, they have shown that the attempt of Bolden and Hampton to sell the property to the appellee Fleming was premature, and, that they have a right to redeem the same by payment of the amount of eight hundred dollars and interest, and that Fleming is chargeable with notice of the rights of the Clarks which, as a matter of law, is not in accordance with the order of the court appealed from, and, therefore, the order sustaining the application for a receiver should be reversed and remanded.

Boddie & Farish, for appellees.

We are unable to find any merit in the contention of appellants, and respectfully submit that the finding of the chancellor was correct. We deem it unnecessary to cite any authorities, but direct the court's attention to general rule for appointment of a receiver as stated in Fourth Pomeroy's Equity Jurisprudence, in section 1484:

"The appointment of a receiver is, as a general rule, discretionary. The discretion is not arbitrary or absolute; it is a sound and judicial discretion, taking into account all the circumstances of the case, exercised for the purposes of promoting the ends of justice, and of protecting the rights of all the parties interested in the controversy and the subject-matter, and based upon the fact that there is no other adequate remedy or means of accomplishing the desired objects of the judicial proceedings." Therefore, the direction of the court in appointing a receiver will not be interfered with by any appellate court, unless it is clear that it has been abused or exercised in a manner inconsistent with well-established rules governing such application. Respectfully submitted.

OPINION

SYKES, P. J.

The appellants, as complainants in the chancery court, in their original bill pray that the court decree certain conveyances, absolute upon their face, to be mortgages, and that they be allowed to redeem the land in question upon the payment of the correct amount due thereon.

The bill alleges: That these complainants purchased from one Mrs Mayor the two houses and lots in controversy, securing the amount due by mortgage or by deed of trust. Default having been made in the payment, the property was advertised for sale by Mrs. Mayor. Prior to the sale it was agreed between the complainants and defendants Bolden and Hampton, as trustees for a certain fund, that these trustees would either bid in the lands or would arrange with Mrs. Mayor to bid them in and sell them to Bolden and Hampton, trustees, with the understanding that these trustees would permit complainants a reasonable time within which to consummate a loan and repay the trustees the price paid by them at the sale or to Mrs. Mayor. That these two trustees arranged for a conveyance of the land to them after it was purchased at the foreclosure sale by Mrs. Mayor. Mrs. Mayor conveyed to them. Thereafter the trustees sold the land to the defendant Fleming. That while the deed from Mrs. Mayor to Bolden and Hampton, trustees, appears upon its face to be an absolute deed, complainants have never parted with the possession of the land, and that this deed was understood between the parties to be a mortgage, and is in fact a mortgage. That the conveyance of the land by Bolden and Hampton, trustees, to the defendant Fleming constituted a fraud upon the rights of the complainants. That Fleming is not a bona-fide purchaser for value, that he knew at the time of his pretended purchase that the grantors had no right to convey the land because they held it in trust for the complainants. That the purchase was for the purpose of obtaining an unfair advantage over the complainants and constitutes a fraud upon their rights. That the purchase price paid by him is grossly inadequate. These in brief constitute the material averments...