Perrin v. Lepper
| Decision Date | 15 April 1885 |
| Court | Michigan Supreme Court |
| Parties | PERRIN v. LEPPER and others. |
Appeal from Calhoun.
CAMPBELL J., dissenting.
Wm. H. Porter, Samuel T. Douglass, Wm. Adams, Geo V.N. Lothrop, and John J. Speed, for defendants.
The order appointing a receiver in this cause took from the complainant the entire custody and management of the property of the estate of Horace J. Perrin, of which he was administrator, and transferred it to the person appointed who was a stranger to that estate. It was therefore appealable, within the decision in Barry v. Briggs, 22 Mich. 201, and many other cases decided by this court. See, particularly, People v. Jones, 33 Mich. 303; Taylor v. Sweet, 40 Mich. 736; Morey v. Grant, 48 Mich. 330; S.C. 12 N.W. 202. It would be a serious reproach to the law if a litigant could be thus summarily divested of his legal possession and excluded from it pending what might be a long litigation, with no redress whatever, except in future restoration, when, perhaps, it had been demonstrated that the original exclusion was unwarranted. But we have said enough in the cases above cited to show that the law is not subject to this reproach.
We have then to see whether the appointment is justified by the facts, and on this point there is in my mind no doubt whatever. A very large estate, amounting according to the inventory to nearly three-quarters of a million dollars, is taken out of the hands of the administrator and handed over to a stranger, without, so far as I can discover in the record, any necessity appearing for it in the litigation, or any advantage to be gained by any one except by the receiver, who would be expected to reap a considerable profit from handling so large an estate. The principal reason assigned for a receiver is the misconduct of Horace J. Perrin in confusing the property of the partnership of Horace J. Perrin & Co. with his own, and in various devices and shifts to defraud the parties concerned in the estate of his partner. But this strikes me as a very remarkable reason for dispossessing his administrator of the control of the assets of the estate. Receivers are not appointed by way of punishment of parties, and especially of dead parties, for their misconduct; but they are appointed because it is supposed the appointment will tend to the working out of justice in the particular case, and as ancillary to the relief sought in that suit. And if all the misconduct charged against Horace J. Perrin were proved, instead of resting as it does as yet in allegation merely, it could have no bearing on the question whether it is now important to the parties that a receiver be appointed.
There is no reasonable ground for even a suggestion that the property of the Sibley estate, commingled with that of Horace J. Perrin, amounts to the major part of the estate which the order proposes to turn over to the receiver, or even to anything near a moiety thereof. There is no showing whatever that the property is being wasted by the complainant, or that it is unsafe in his hands, and the contrary is clearly shown. There is no showing that complainant is doing anything whatever to embarrass an investigation of the affairs of the partnership, but, on the contrary, it is shown that the books and papers of the partnership are put at the service of the defendants and their counsel, and open for their examination at all times, and are examined by them to the full extent they may desire; and if any books or papers are concealed from defendants or their counsel, it is not suggested that the appointment of a receiver will tend in any way to their discovery, and counsel appear now to have the full liberty of search and examination which could possibly be given to a receiver.
There is, therefore, no showing whatever that the remedy of any party to this suit will in any manner be advanced or rendered more certain or effectual by the appointment of a receiver, and we can conceive of no legitimate advantage to flow to any one from the appointment, unless the profits to the receiver can be regarded as such. If the appointment were to stand, the labor on his part in familiarizing himself with this great estate, and in the management of it, would be very considerable, and his compensation proportionately large; and observation of receivership warrants us in the conclusion that he would not be likely to demand less than full pay for his services. The expense would be no conclusive answer to the appointment if any legitimate gain was to accrue to litigants therefrom; but, as already stated, I can conceive of none, and the appointment, so far as it concerns property of the Horace J. Perrin estate, assumes the appearance of intended punishment inflicted, while yet the question of fault remains to be adjudicated. It seems to be both condemnation and punishment of a party not as yet heard, and I cannot, therefore, assent to it.
The order of appointment, in my opinion, should be so restricted as not to apply to any part of the property claimed as belonging to the estate of Horace J. Perrin. If defendants desire a receivership as to other property there can be no legal objection to it.
The bill in this case, which was amended after the decree of this court on demurrer, (reported in 49 Mich. 347; S.C. 13 N.W. 768,) purports to be filed to procure an accounting and general settlement of several estates and interests alleged to be so connected as to require their disposal together. A brief preliminary statement is necessary, although some fuller references may be required hereafter.
Horace J. Perrin and Joseph Sibley were partners for several years before the death of Sibley, in September, 1864. Darius J. Perrin is alleged, and also claims himself, to have been a member of their firm. Sibley, by his will, which was construed by this court in the case of Rock River Paper Co. v. Fisk, 47 Mich. 212, S.C. 10 N.W. 344, made Horace J. Perrin, with several others, executors, and gave them jointly some discretionary powers of limiting his only child, Frank Sibley, in his succession to the estate. Horace J. Perrin was the only executor who qualified, and we held that Frank Sibley succeeded to the entire residue of the estate. Horace Perrin continued during his life to handle all the partnership assets and the Sibley estate assets, and made no distribution or settlement. He died in 1880, nearly 16 years after assuming control of these assets. Frank Sibley died, and left defendant Anna, now Mrs. Fisk, his sole legatee and executrix. Defendant Lepper is administrator de bonis non of Joseph Sibley's estate, and instituted proceedings in the probate court of Calhoun county, which were affirmed by this court in Perrin v. Circuit Judge of Calhoun, 49 Mich. 392, S.C. 13 N.W. 767, to compel a disclosure and accounting from complainant in this cause of the matters concerning the Sibley estate. Some other bills have been filed at various times, not necessarily important in the present stage of this controversy.
In January, 1883, complainant, who had been appointed administrator of Horace J. Perrin in the early part of 1880, filed the present amended bill, which sets out what is claimed to be a history of such matters as are sought to be litigated, and which are, so far as can be stated, generally as follows; It sets forth the making, in October, 1858, of articles of partnership, for three years, between Sibley and Horace Perrin, with stipulation allowing Darius Perrin to come in, and his subsequent acceptance, and a renewal by Sibley and Horace Perrin in 1861 for three years. Sibley was to, and did, contribute $103,806.39. Perrin's contribution was not fixed in the articles, but is averred to have been larger, and is one of the controverted facts. All partners were, by the articles, to share in management; and, in case of death, the business was to be wound up by the survivors, and settlement made as soon as practicable. Interest was to be allowed on the capital advanced in accordance with the securities. Sibley died in September, 1864, about a month before the partnership was to end, and his will was probated October 7, 1864, four days before such proposed termination. The will contained no directions concerning the partnership. Of the five executors named, only Horace Perrin qualified. October, 1869, Francis M. Sibley, the residuary legatee, married Anna Louisa Montgomery, and on the thirtieth of November, 1870, died, at the age of 25 years and upwards, leaving his whole estate to his widow, now Mrs. Fisk.
The bill further states that a farm called the "Tillotson Farm" was bought by the firm, subject to a mortgage, which was foreclosed in 1865 and bid off by Darius Perrin, but the consideration was paid out of firm assets, and it belonged to the firm; that a part was afterwards sold to one Calkins for $4,000, which Horace Perrin received, and is alleged to have charged himself with; and that the land unsold, and in Darius Perrin's name, belongs to the firm, and has been so treated by Horace Perrin, and he has so entered the income. It is claimed by the defense that there are some inconsistencies in the dealings with this property.
The bill sets up the ownership by the firm of a lot of one and eighty one-hundredths acres on Hughes street, in Marshall which it avers was conveyed by Horace Perrin in 1876 to one of the defendants, Caroline E. Perrin, without consideration, and when he was incompetent to do business, and that a suit is now pending in the United States court in favor of his heirs to recover it. It also sets up the ownership by the firm of the Tillotson mill property, held in the names of Sibley and Horace Perrin, and mortgaged for $6,000,...
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