United Bank & Trust Co. v. Fidelity & Deposit Co. of Maryland

SEAWELL, J.

This appeal is taken from a judgment entered against appellant after an order made sustaining a demurrer to appellant’s complaint without leave to amend. The facts herein considered are taken from the complaint, it being the only record by which the question of the sufficiency of the facts as stating a cause of action may be judged. The plaintiff and appellant herein asserts the right to maintain this action and appeal by reason of successive assignment of claim of agister’s lien which, it is claimed, originally accrued to the owners of the real property, to wit, San Joaquin Agricultural Corporation, on account of cattle which were pastured upon the lands of the latter corporation, and which claim was assigned first to the Union National Bank, a corporation, and latterly to the appellant, United Bank and Trust Company, a corporation.

On April 18, 1922, there was due and owing from one Charles F. Silva to said San Joaquin Agricultural Corporation, on account of pasturage of cattle, the sum of $11,166.33. Said cattle were held and possessed on said day by said corporation under an agister’s claim of lien. Upon

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the application of the Mercantile Trust Company of California, the holders of a mortgage and deed of trust upon said real property upon which said cattle were and had theretofore been pastured—pending a foreclosure proceeding theretofore commenced by said Mercantile Trust Company of California against said San Joaquin Agricultural Corporation—the superior court appointed one Walter P. Coombs receiver in said foreclosure proceeding and he duly qualified and filed a bond for the faithful performance of his duties as receiver, which bond was made and executed by respondent Fidelity & Deposit Company of Maryland, a corporation. Said undertaking provided that said Coombs would obey all orders of court made in said matter of receivership. Said Coombs, as such receiver, thereafter took possession of said real property, and, under order of court, took possession of all cattle upon which said San Joaquin Agricultural Corporation had its lien for pasturage. On or about July 17, 1922, upon the petition of the Union National Bank, a corporation, the assignor of appellant, said superior court, by its written order made and served upon said receiver, instructed him to refuse permission to said Charles F. Silva, or any of his agents or other persons, to remove from said real propertjr cattle belonging to said Silva, upon which said San Joaquin Agricultural Corporation had a lien for pasturage, until the sum of $11,166.33, as for the pasturage of said cattle, had been paid and the lien thereby released. It is alleged that thereafter and without permission of the court or of appellant or any of its assignors, the said receiver, Walter P. Coombs, permitted said Charles F. Silva to withdraw from the possession of said receiver said cattle, contrary to the order of the court theretofore made, to the loss and damage of appellant in the sum of $11,166.33. The insolvency of Charles F. Silva, who is not made a party, is alleged on information and belief.