J. M. Overell Furniture Co. v. Superior Court

WORKS, J.,

pro

tem.

Ethel K. Patterson commenced an action in the superior court against Clarence H. Patterson and Monnie Blackburn for the purpose of recovering certain real property which Patterson had conveyed to Mrs. Blackburn. The recovery was sought on the ground of fraud. The property consisted, in part, of an apartment house, the furniture and some other equipment of which were the property of the J. M. Overell Furniture Company, the petitioner in this proceeding. This personal property had been under lease from the petitioner to Patterson, the lease containing provision for a transfer of title by the petitioner upon the completion, by Patterson, of the payment of a certain total sum in rents. Patterson had assigned the lease to Mrs. Blackburn and the petitioner had consented to the assignment, Mrs. Blackburn agreeing to make the payments of rental called for by the lease.

A receiver was appointed in the action commenced by Mrs. Patterson, the order of appointment requiring the officer to take possession of the real property which was the subject of the action, “to collect the rents thereof, ... to pay out of said rents and income any and all expenses connected with the said real property or the improvements thereon, including interest or encumbrances, or liens, insurance and other necessary expenses and to preserve any balance of said rents and income remaining in the hands of the receiver pending the further determination and decision of this court.” The receiver qualified and took possession of the real property, the personal property of petitioner still remaining and yet being on the premises.

• By its petition in this proceeding the petitioner seeks to restrain the respondents from enforcing or carrying out the order appointing the receiver on the ground that it is void, but the petitioner concedes in its brief that it is not entitled

[747]

to the broad relief prayed for. The petitioner’s theory is that the order requiring the collection and retention of rents, taken in connection with the fact that the receiver is in possession of the personal property, amounts to an infringement of its rights under the contract between it and Mrs. Blackburn. It is alleged in the petition that Mrs. Blackburn, upon taking the assignment of the lease, agreed with petitioner that she would thereafter pay the monthly rentals on the personal property out of the rents from the apartment house as they came in, and the allegation is not denied by the respondents. The petitioner also had the right, under the terms of the lease itself, to take possession of its property at any time, without notice, upon default in the payment of rent. The petitioner insists that both of its remedies are cut off by the order appointing the receiver; that it cannot seize the property for the reason that it is in the custody of the court, and that payment of the amounts due it out of the rents collected from the apartment house cannot be made, because they are directed by the court’s order to be devoted to other purposes.