Hospes v. Almstedt

• Decision Date: 13 February 1883
• Citation: 13 Mo.App. 270
• Parties: ERNEST L. HOSPES, Appellant, v. HENRY ALMSTEDT ET AL., Respondents.
• Court: Missouri Court of Appeals

13 Mo.App. 270

ERNEST L. HOSPES, Appellant,

v.HENRY ALMSTEDT ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Feb. 13, 1883.

APPEAL from the St. Louis Circuit Court, LINDLEY, J.

Reversed and remanded with directions.

RUDOLPH SCUHULENBURG and G. A. WARDEMAN, for the appellant: The delivery of the note and deed of trust, by the receiver, gave no title thereto.-- Blunt v. Clitherow, 6 Ves. 799; Attorney-General v. Vigor, 11 Ves. 563; Hooper v. Winston, 24 Ill. 366; Johnson v. Guenter, 6 Bush, 535. The estates were merged.

LOUIS GOTTSCHALK, for the respondent: Under the facts there could be no merger.-- The State to use v. Koch, 47 Mo. 584; Simonton v. Gray, 34 Me. 50; Den v. Brown, 26 N. J. L. 205; Swope v. Leffingwell, 72 Mo. 348.

THOMPSON, J., delivered the opinion of the court.

The plaintiff, claiming title to certain property, seeks in this suit in equity to have a certain deed of trust thereon and note secured thereby, delivered up and cancelled, and to have a sale which has taken place thereunder declared void. The only question which we shall consider is the question of the title of the defendant Almstedt, to the note and deed of trust. The note, for the sum of $16,500, and the deed of trust securing the same, were owned by Joseph Jecko and G. H. Hospes, who were partners in the practice of the law. The defendant Almstedt held the note of these partners to the extent of about $7,000, on which he had brought suit, and recovered a judgment against Hospes for about $4,000; and Jecko has also given him a deed of trust on property of his own, including the property in controversy. In addition to being the owner of this note and the deed of trust, Jecko and Hospes had acquired title to the property through a sheriff's sale under a judgment which was a junior lien to that of the deed of trust. Having thus acquired the property in fee, the deed of trust and the note secured by it had been, it would seem, pigeon-holed and forgotten. Jecko was appointed receiver of the partnership firm of Jecko & Hospes, and, while acting in this capacity, he discovered the note and deed of trust in a pigeon-hole in the partnership safe, and turned it over to the defendant Almstedt, taking the following receipt therefor: “Received, St. Louis, October 23, 1880, of Joseph Jecko, receiver of the late firm of Jecko & Hospes, a certain note of which the following is a copy. [Here follows copy of Von Dreveldt note.] Which note I will endeavor to collect, and will apply the proceeds of the credit of payment of my note against said Jecko & Hospes; which note was sued upon in St. Louis Circuit Court, and judgment obtained against G. H. Hospes.

HENRY ALMSTEDT.”

This note and deed of trust had never been reported to the court by Jecko as assets of the partnership estate, nor had he any authority from the court, general or special, to transfer the same, or to turn it over in payment of, or as additional security for, any debt of the firm; nor was his act of turning it over to Almstedt ever sanctioned by the court, nor did he ever report it to the court.

We may stop here; for it clearly appears from these facts, that the defendant Almstedt has acquired no title to the note and deed of trust, and that the sale which he has caused to be made thereunder, in which he has become the purchaser, is null and void. A receiver is simply the officer of the court, very much as the clerk or the sheriff is. Except where his duties are defined by law, they are limited and circumscribed by the orders of the court by which he has been appointed, or under whose authority he acts. The possession of funds collected or held by him is the possession of the court. In general no discretion is allowed him as to any application or disposition of such funds; but he holds them subject to the order of the court, and to be paid to whom the court shall adjudge. So completely ministerial are his duties, that he is frequently called the arm or the fingers of the court. See Hooper v. Winston, 24 Ill. 253, 266; Johnson v. Guenter, 6 Bush, 534; Blunt v. Clitherow, 6 Ves. 799; High on Rec., sect. 175.

It is true that modern courts have sanctioned payments made by receivers without express orders of the court, where such payments were either necessary or beneficial to parties interested in...