Kelly v. Steele

• Decision Date: 03 June 1903
• Citation: 9 Idaho 141,72 P. 887
• Parties: KELLY v. STEELE, JUDGE
• Court: Idaho Supreme Court

72 P. 887

9 Idaho 141

KELLY v. STEELE, JUDGE

Supreme Court of Idaho

June 3, 1903

COMPLAINT-SUFFICIENCY OF-RECEIVERS TO TAKE CHARGE OF REAL PROPERTY.-Complaint examined and held not sufficient to authorize appointment of receiver. Appointments of receivers to take charge of real property should never be made until the moving party shows himself clearly entitled thereto. It is not the policy of courts of equity to take charge of real estate and manage and control it through the aid of a receiver as against the party in possession asserting title in himself, unless it is shown to be in imminent danger of great waste or irreparable injury.

(Syllabus by the court.)

ACTION by Universalist General Convention, a religious corporation against Edmund Pearcy et al.

Receiver appointed in limine by Edgar C. Steele, district judge of the second district. Defendants apply for writ of certiorari to review order making said appointment. Writ granted and order reviewed, annulled and vacated.

Judgment entered vacating and annulling the order. Costs awarded to plaintiffs with directions.

Eugene O'Neill, for Plaintiffs.

The court exceeded its jurisdiction in making the appointment of the receiver. Defendants had filed their answer denying every material allegation of the complaint, and meeting and denying every equity of the complaint; and had met and denied every allegation and equity of the plaintiff's affidavits filed and before the court at the time of the hearing. (Sweeney v. Mayhew, 6 Idaho 455, 56 P. 85; High on Receivers sec. 24.) The court below apparently took the view that it would be proper to appoint a receiver to collect rents. This is clearly wrong in principle. "A suit for an accounting for the rents of land brought against one in possession by one who claims title, when the former denies the latter's title and alleges title in himself, equity will not appoint a receiver to collect the rents as the principal question in dispute is legal and not equitable." (Bennallick v Richards et al., 125 Cal. 427, 58 P. 65; High on Receivers, secs. 555, 557; 17 Ency. of Pl. & Pr. 725; State ex rel. Greenland v. Second Judicial Court et al., 13 Mont. 416, 34 P. 609; Bateman v. Superior Court, 54 Cal. 285.) In cases like one under consideration, involving merely legal as distinguished from equitable rights, the law does not authorize the appointment of a receiver. (San Jose Bank of Savings v. Bank of Madera, 121 Cal. 539, 54 P. 83; Scott v. Sierra Lumber Co., 67 Cal. 76, 7 P. 131.)

Miles S. Johnson and I. N. Smith, for Defendant.

This action below was instituted to quiet title, and the complaint follows a precedent established by your honorable court in the case of Barton v. Dunlap, 8 Idaho 82, 66 P. 832. The right to appoint receivers in such actions is discussed by Justice Story at section 831. The author at sections 833a and 833b lays down the powers of such receivers. A receiver may be appointed where trustees have accepted an inconsistent trust. (Talbot v. Scott, 4 Kay & J. 140.) It is also well settled that where there are such disputes and dissensions among the trustees as to endanger the trust property, a receiver may be appointed. (Wilson v. Wilson, 2 Keen, 249; Swale v. Swale, 22 Beav. 585; Day v. Croft, 2 Beav. 488; McCosker v. Brady, 1 Barb. Ch. 329; Hogg v. Hoag, 80 F. 595.) It is held that where, pending the litigation in which real property is involved, it appears that unless a receiver is appointed, the current rents and profits of such real property will probably be lost to the party properly entitled thereto, a receiver will be appointed. (Roberts v. Mullinder, 94 Ga. 493, 20 S.E. 350; McNair v. Pope, 96 N.C. 506, 2 S.E. 54; Durant v. Crowell, 97 N.C. 373, 2 S.E. 541; Bartlett v. L. Bartlett & Sons, 116 Wis. 450, 93 N.W. 473.) In the case at bar, the reason for the execution of the warranty deed from the trustees of the First Universalist Church of Lewiston to the trustees of the Universalist General Convention is very apparent. At the date of the execution of the deed from Melaine La Francois, the Universalist Society of Lewiston was not established nor ordained as such. It was compelled, by the nature of the estate granted, to join trustees of the Universalist General Convention in order to carry out the wishes of the grantor, and to establish the estate and interest as designated in the deed by Melaine La Francois.

AILSHIE, J. Sullivan, C. J., and Stockslager, J., concur.

OPINION

The facts are stated in the opinion.

AILSHIE, J.--

On April 2, 1902, the Universalist General Convention, a religious corporation, as plaintiff, commenced its action in the district court in and for Nez Perce county against Edmund Pearcy, M. A. Kelly, Eliza W. Thatcher, Eugene O'Neill Mary C. O'Neill, Viola McConville, Ella M. Murphy, William M. Murphy, Joseph Malloy, Eben Mounce, Eva K. Mounce, Herbert Kemp and S. Edgar Arant, defendants.

Paragraphs 1 and 2 of the complaint allege the corporate existence of plaintiff and that certain of the defendants were husband and wife and are joined as defendants for that reason. The other allegations of the complaint are as follows:

"3. That the plaintiff now is, and since on or about the seventh day of December, 1882, has been, the owner in fee of, and at all said times was, and now is, entitled to the immediate possession of, and was up to about the eighth day of February, 1901, in the possession of that certain real estate situated in Nez Perce county, Idaho and more particularly described as lot 5, in block G of the La Francois tract of land in the city of Lewiston, county of Nez Perce and state of Idaho with hereditaments and appurtenances, which property is situated at the northeast corner of E and Eugene streets in Lewiston, Idaho.

"4. That on the eighth day of February, 1901, the defendants, except William M. Murphy and Eben Mounce, as named above, wrongfully and without right entered into and took possession of said premises, and now are and since said times have been in possession thereof, and asserting and claiming some estate or interest in the said premises adverse to this plaintiff. That the exact nature of the claim of the said defendants is unknown to this plaintiff, and that whatever the said claim may be, such claim is wrongful and without right, and is contrary and adverse to the right and claim of plaintiff in and to said premises; and that the claim of the said defendants is without right either in law or equity. That in truth and in fact none of said defendants have any right, title, interest, claim, demand or estate of any kind or nature in or to the said premises, or any part thereof.

"5. That prior to the institution of this action, and on the day of February, 1901, the plaintiff demanded of and from the defendants, and each of them, the immediate possession of said premises, and that the defendants, and each of them, refused, and still refuse, to deliver the possession of the same, or any part thereof, to this plaintiff. And that the said defendants, and each of them, except Eben Mounce and William M. Murphy, now wrongfully and without right withhold the possession of the said premises from this plaintiff. And that the said defendants on the demand for possession, as herein alleged, refused, and still refuse, to deliver possession thereof, or of any part thereof, to this plaintiff, and have since said time used and occupied, and now are using and occupying, said premises without the consent of this plaintiff and contrary to the wishes and the will of the plaintiff.

"6. That the use of said premises is reasonably worth the sum of $ 25 per month, no part of which has been paid.

"7. That the said premises are now deteriorating in condition, and the said defendants are permitting the same to deteriorate to the lasting damage of the estate of this plaintiff, and the defendants have refused, and now refuse, to permit this plaintiff to enter upon its own premises to repair the same or keep the same in any condition of repair."

At the same time plaintiff made and filed a motion for the appointment of a receiver and accompanied the same by the affidavits of Miles...