Benjamin H. Ellicott, Receiver of Rachel Colvin, vs. Richard C. Warford, Adm'r pendente lite of Rachel Colvin, 4 Md. 80

Eccleston, J., delivered the opinion of this court. Upon the motion to dismiss in this case, it was contended that the motion should be sustained on two grounds. 1st. Because the order of the 19th of Apiil 1853, removing the receiver and directing him to deliver up the property under his control was such an order as could not be appealed from. 2nd. If it could the receiver was not a party having the right to appeal. Believing the motion ought to be sustained on the second ground, we shall confine our remarks to that, exclusively. In the lifetime of Rachel Colvin, by virtue of proceedings in chancery, B. H.

Ellicott was appointed a committee for her as a lunatic. After her decease, considering his control and authority over her property at an end, he filed a petition praying the chancellor to appoint him as receiver. Joseph Cain, Richard Cain, Mary Larue, and Daniel her husband, Elisha Warford, Anne Hudnutt, John Cain of Gershom, and John Cain of Daniel, also filed a petition representing themselves as among the next of kin, and heirs at law of Rachel Colvin ; that she had died leaving a will, the probat of which was disputed, and asking for the appointment of B. H.

Ellicott as a receiver, to take possession of the veal and personal property ££ until some one having right to the same shall appear to whom it can be delivered, or until the further order of the court.” On these petitions the chancellor passed an order dated the 9th of February 1853, appointing Ellicott the receiver ; but expressly reserving to the court, power to change, modify or annul the order, to discharge the receiver and to pass such orders and decrees in the premises, as might be deemed necessary and proper. ■ Subsequently R. C.

Warford filed a petition stating that he had been appointed administrator pendente lite of Rachel Colvin, by the orphans court of Baltimore city, and praying that the chancellor would revoke the appointment of the receiver, and direct the personal property to be delivered over to the petitioner. This application not only asked for a revocation of the receiver’s authority in regard to the personalty, but to the realty likewise ; the petitioner stating that in the event of such revocation it was his intention to apply, immediately, to the Superior Court of Baltimore city, to be appointed receiver of the estate.

Among the reasons assigned for such revocation, he states •that he is not only appointed the executor of Rachel Colvin in her will, but that he is also the principal legatee and devisee. Jesse H. Landis, Rebecca Landis, Mary Quick and Theophilus Quick her husband Elizabeth Large and James Large, her husband, likewise presented a petition, alleging that they were the heirs at law of Rachel Colvin,- and so far as they knew her only heirs at law.

They also prayed that the appointment of Ellicott as receiver might be revoked, and asked for the appointment of one of their solicitors or some other proper person in his place, until the coritroversy should he ended. On the 19th of April 1853, the chancellor passed an order removing B. H. Ellicott from the office of receiver, and directing him to make a report, rendering an account of the property and money which came to his hands, and to deliver over to the adminstratorpendente lite, the personal estate of the deceased. From this order the appeal is taken.

In deciding the question as to the right of the receiver to appeal, it is proper to ascertain what is the nature of his office It is defined in sundry quotations, in the case of Ellicott vs. The U. S. Insurance Co., 7 Gill, 320. From which it appears the appointment of a receiver does not determine any right, or affect the title of either party, in any manner whatever. He is the officer of the court ; and truly the hand of the court. His holding is the holding of the court from him from whom the possession was taken. He is appointed on behalf of all parties, and not of the plaintiff or of one defendant only.

His appointment is not to oust any party of his right to the possession of the property, but merely to retain it for the benefit of the party who may, ultimately, appear to be entitled to it; and when that is ascertained the receiver will be considered as his receiver. It was conceded, in argument, on the part of the appellant, that he could not appeal in his own right, but it was said he could do so as representing the parties interested. How can this be true ? He was as much the representative of the administrator pendente lite as any one else.

The possession of the property did not come to him fiom any of the litigant parties. There had been no final adjudication as to whom the property belonged ; so as to constitute him the receiver for the persons in whose favor such decision was made, thereby authorising him to represent them in particular. But the only action of the court being that which removed him from office, and ordered the personalty to be delivered over to the administrator pendente lite, if the receiver could be considered more the representative of one than another, the administrator was that one.

As regards Ellicott, personally, he is not injured, for we have seen that he took the appointment, under an order reserving, in express terms, full power in the court, to change, modify or annul the same, and to discharge him as receiver. His counsel, therefore, might well concede he could not appeal, so far as his own rights are concerned. To sustain the right of appeal the case of Ellicott vs. Ellicott, 6 G. & J., 35, was referred to, where a trustee under a decree in chancery was allowed to appeal, for the benefit of those interested in the fund. That case differs from this in several particulars.

There the order directed the fund to be applied in a certain way, by which the rights of parties were to be most material!}' affected, indeed finally adjudicated. The trustee was not removed from office, but was still the trustee. And none of the interested parties, themselves, appealed from the same order. Here the decision did not profess, or attempt, to settle any question as to the right of property. But the receiver was removed or dismissed, and when the appeal was taken he was functus officio.

And sundry persons, professing to be parties in interest, have appealed from the same order, now under consideration. They are the same persons on whose petition, in part, the original order of the 9th of February, appointing Ellicott as receiver, was passed ; and who also filed a petition praying that the receiver should not be removed. It will be seen that the two last mentioned petitions, as well as all others which have been spoken of, were filed in the same original cause in chancery, relating to the matter of Rachel Colvin, a lunatic.

The ground of necessity, therefore, cannot be relied upon as furnishing an argument in favor of allowing the dismissed receiver to appeal, for the purpose of protecting the rights of parties, in interest, for there is an appeal independent of his. We have refrained from saying anything in reference to the first ground taken in support of this motion, because we wish to avoid interfering in any manner with questions which may probably arise in the other appeal. But on the second ground the present motion will be sustained. Appeal dismissed.