Skinner v. Maxwell

• Citation: 68 N.C. 400
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 January 1873
• Parties: CHARLES SKINNER v. D. G. MAXWELL.

68 N.C. 400

CHARLES SKINNER

v.D. G. MAXWELL.

Supreme Court of North Carolina.

January Term, 1873.

While property is in the hands of a receiver, no right to it can be acquired by sale under execution; and it makes no difference that the receiver appointed decline to act, the property was, nevertheless, in the custody of the law.

This was a MOTION for an injunction and the appointment of a receiver, heard before Logan, J., at Fall Term, 1872, of MECKLENBURG Superior Court, and the case was before this Court at January Term, 1872. At that Term this Court ordered its opinion to be certified to the Superior Court of Mecklenburg county, and at that Term of said Court the defendant filed a plea since the last continuance. Notwithstanding this plea, his Honor, Judge Logan, gave judgment according to the opinion of the Supreme Court and appointed a receiver. From this judgment the defendant prayed an appeal, which was refused. At June Term, 1872, of this Court a certiorari was ordered and the cause accordingly came before this Court at January Term, 1873.

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

Dowd, Barringer and Battle & Sons, for appellant .

Bynum and Jones & Johnston, for plaintiff .

RODMAN, J.

This case was before the Court at Janua??y Term, 1872, and is reported in 66 N. C. Rep. 45. After the decree here directing the continuance of the injunction and the appointment of the receiver, the defendant filed in the Superior Court of Mecklenburg an answer since the last continuance, in which he set forth that on 8th January, 1872, he bought at execution sale all the interest of the plaintiff in the property in controversy in the action. He thereupon opposed the appointment of a receiver. The Judge nevertheless appointed one, and defendant appealed. His counsel complains in this Court, that the Judge would not consider the case made by his answer since the last continuance, upon its merits, but thought himself bound by the judgment of this Court to appoint a receiver under any circumstances. We will assume, without considering or deciding, that a Judge below is not bound to carry into effect a judgment of this Court, if in the meanwhile the relations of the parties have so changed as to make the judgment inapplicable or unjust. The defendant is certainly entitled to be heard here, upon the effect of the new matter set up in his answer, since the last continuance. And we put out of view for the present any questions which may be made upon the affidavits, as to the regularity of the sale, by reason of the property not being present, &c.

We cannot, however, concede to the defendant that his answer is to be considered without reference to the antecedent pleadings. A Judge is bound to know all that the record shows to have been done in the action before him. When, therefore, the defendant alleges that he has bought the property in controversy at execution sale the Court must necessarily look at the record to see what property or interest is in controversy, and whether the interest, property or right, whichever it be, is one which could, under the circumstances, be sold under execution; for if it could not, the purchaser acquired nothing, except, perhaps, a right to be subrogated to the right of the creditor to the extent of the purchase money. That, then, is the question we are to consider; whether the interest of the plaintiff passed to the defendant in the whole, or any part of the matter in controversy. If it passed in the whole, clearly the defendant is entitled not only to the rescission of the order appointing a receiver, but also to a vacation of the injunction and a dismissal of the bill. We turn to the complaint to ascertain the matter in controversy. It states that on 12th November, 1871, plaintiff, being under age, bought of defendant a stock of confectionery and other goods, a soda fountain, and the good will of the business which defendant had previously carried on; that at the same time he paid a sum in cash, and gave his note with surety, payable at twelve months, for the residue of the purchase money, and to secure the same executed to defendant a mortgage on the property purchased. Plaintiff took possession of the property, sold some of it in the usual course of a retail business, and from time to time replenished the stock by purchases by his own means or credits, and especially that in October, 1871, he purchased and added to the stock goods to the value of $2,200. Some of these have been sold, others remain in specie mixed with the original purchase. On 18th November, 1871, defendant entered...