COMER v. FELTON, 61 F. 731

LURTON, Circuit Judge (after stating tlie facts as above)’. The defendant, Comer, was not made a party to the petition by service of process. Notice was given to his solicitor that on a day named an application would be made for a writ of assistance. Under this notice he appeared by counsel, and filed the demurrer to the petition heretofore set out. The first ground of demurrer goes to the jurisdiction of the court to grant a writ of assistance to dispossess him by an order made in a cause to which he was not a party. The second ground operated as an appearance and defense to the merits.

It questions the order appointing Felton receiver, and insists that it was limited to the property of which the Cincinnati Railway Company was then in possession. If the defense had been confined to the power of the court to order a writ of assistance to dispossess one who had not entered pendente lite, and was not a party to the suit, it would have been well taken so far as the application was for a technical writ of assistance.

The ninth equity rule provides for the issuance of that writ: “When any decree or order is for the delivery of possession, upon proof made Tby affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court.” At the date of Felton’s appointment, the Cincinnati Railway Company was not in possession of the premises. They were then rightfully possessed by its licensee. “This writ is often used to put into possession receivers and sequestrators.

It is not issued without an order for that purpose. * * * It is a writ commanding the marshal to eject the defendant from the land, and put the plaintiff in possession, and is executed in the same manner as a writ of habere facias possessionem is executed in favor of a successful plaintiff in the action of ejectment.” Fost. Fed. Pr. § 348. Manifestly, it should not issue against any but a party to the suit in which it is sought, or Ms privies, or one coming into possession pendente lite. Terrell v. Allison, 21 Wall. 289; Howard v. Railway Co., 101 U. S. 849; Fost. Fed. Pr. §348.

The petition presented a controversy between two receivers of the same court. The facts stated presented a case of which the court should take jurisdiction. Each was an officer and agent of the same court. The possession of cacti was the possession of the court. The object of the suit was to present to the court the claim of each, and submit the right of each to the determination of the court. The court appointing a receiver draws to itself all controversies over the res, and will not, without leave, permit any other court to disturb the possession of its receiver.

The proper practice would have been to have filed the petition in the cause in which Comer had been appointed receiver, and to have asked an order in that cause requiring the court’s receiver to deliver possession of the leased property, the lease having terminated. The demurrer did not raise this question, and we see no jurisdictional error in maintaining the suit, either as an independent bill or as a petition in the cause in which it was filed. The alternative relief sought by the bill was proper relief on the facts stated in the pleadings. The second ground of demurrer was not well taken.

The petitioner had been appointed receiver of all the property rights of the Cincinnati Railway Company. This included its interest in the property in question. While the lease was operative, neither lire Cincinnati Railway Company nor its receiver was entitled to the possession. Nevertheless, the property passed to the receiver, subject to the rights of the licensee. The right to terminate the license was a right which might be properly exercised by the receiver, and, upon the termination of the license, his right to possession was perfected.

Having by the second ground of demurrer entered an appearance and pleaded to the merits, the court properly overruled the demurrer and required an answer. The answer set np two defenses,—res adjndicata and equitable estoppel. Upon the filing of the answer, the court directed the clerk to take proof and report as to when notice of revocation had been given, and upon whom it had been served. The first defense rests upon the judgment in favor of the defendant in the unlawful detainer suit before a justice of the peace. That action was against one T. B. Ervin; Receiver Comer was not a party.

The answer describes Ervin as the master mechanic at the Chattanooga yards and an employe of the respondent as receiver, and, as such, in charge of the premises. Defendant, Comer, is not shown to have entered an appearance or in any way made defense.

Waiving the question as to whether suit against a mere servant of the receiver would justify a dispossession of the master, we .are of opinion that, if the suit be treated as one against Receiver Comer to dispossess him of the possession as the agent and custodian of the court appointing him, the justice of the peace was wholly without jurisdiction to maintain such a suit. His judgment would have been treated as null and void, and any effort to enforce it by a writ of possession would have been in contempt of the court whose receiver defendant, Comer, was.

The general doctrine has been thus stated by Judge Story, in the second volume of Equity Jurisprudence (section 833a), where it is said, concerning receivers under decrees in equity: “For bis possession is deemed the possession of tbe court, and the court will not permit itself to be made a suitor in a court of law. The proper and usual mode adopted under such circumstances is for the party claiming an adverse interest to apply to the court to be permitted to come in and be examined pro interesse suo.

He is then allowed to go before the master and to state his title, upon which he may in the first instance have the judgment of the master, and ultimately, if necessary, that of the court. And where the question to be tried is a pure matter of title, which can be tried in an ejectment, the court, from a sense of convenience and justice, will generally authorize such a suit to be brought, taking care, however, to protect the possession by giving proper directions.” In Davis v.

Gray, 16 Wall. 218, the supreme court on this subject said: “Money or property in bis hands is in custodia legis, He has only such power and authority as are given to him hy the court, and must not exceed the prescribed limit. The court will not allow him to be sued touching the property in his charge, nor for any malfeasance to the parties, or otherwise, without its consent; nor will it permit his possession to be disturbed by force, nor violence to be offered to his person while in the discharge of his official duties.

In such cases the court will vindicate itsi authority, and, if need be, will punish the offender by fine and imprisonment for contempt.

Where property in the hands of a receiver is claimed by another, the right may be tried by proper issues at law, by reference to a master, or otherwise, as the court in its discretion may see fit to direct.” The act of congress of March g, 1887, permitting suits against receivers, only permits such suits, without leave of the court, “in respect of any act or transaction of his in carrying on the business connected with such property.” Defendant, Comer, had been put in possession of the premises involved by a decree of the circuit court, and a suit instituted in a court of law, without leave of the court appointing him, was a gross contempt.

In re Tyler, 149 U. S. 164, 13 Sup. Ct. 785; Central Trust Co. v. East Tennessee, V. & G. Ry. Co., 59 Fed. 523. While the justice’s judgment is a general finding i'or the defendant, yet. it is probable that be took this view of iiis jurisdiction, and therefore found for the defendant. But whether this be so or not is immaterial. Any judgment in another court in a suit affecting the receiver’s right of possession should be treated as null and void by the court appointing the, receiver thus wrongfully impleaded without leave of the court. The third and last question is one of equitable estoppel.

The contract between the two railway companies provided that the license might he terminated by giving two years’ notice. That notice was properly and regularly given to the Chattanooga, Home & Columbus Railroad Company, March 26, 1891. That company was the contracting licensee, and was in possession of ihe premises at the date notice was given. In May, 1891, that company sold out its road to the Savannah & Western Railroad Company, and assigned specifically all its rights as licensee in The premises in dispute.

Subsequently the Savannah & Western Railroad Company became insolvent, and appellant, Comer, was appointed receiver. In view of this change in the possession, ihe receiver for the C., N. O. & T. P. Railway Company, as a pure act of courtesy, wrote and mailed the letter heretofore set out. A copy of the notice which had been served on the president of the Chattanooga, Rome & Columbus road was inclosed. Tins copy was not dated. The loiter to Comer recites that this notice .had been given “March 26th, last.” This would refer to March 26, 1892, a year later than the actual service of the notice.

Tire answer avers that the defendant, Comer, had no other notice whatever of any desire to determine said contract than that furnished by the Jetier of Felton, and that he relied upon the fact slated in that letter as to the date when notice had been given. That, being thus misled, he took no step to provide other terminal facilities in lieu of those engaged under the contract, which, as a result of the date of notice set out in the letter of Felton’s, he believed would continue until March 26, 1894.

He further averred that, if he was now dispossessed, the business intrusted to Ms management by the court would be greatly injured. The report of the clerk covered only two facts:

(1) That notice of revocation had been served on the president of the Chattanooga, Rome & Columbus Railroad Company, March 26, 1891; (2) that the letter of June 16,1892, appended to the answer of defendant, Comer, had been written by Receiver Felton.

As to whether Comer had knowledge' of the true date of the notice of revocation, or was misled by the dale of that notice, as stated in Ihe letter of Felton, the report is silent. 27o proof was submitted upon either of these questions of fact, and the record is equally barren as to the extent and character of injury to result to the business of the Savannah Company, should Felton be permitted to show the true date of the revocation notice. Felton’s letter on its face is shown not to have been intended as a new notice of revocation. That it was not intended to mislead is equally apparent.

He had no motive to deceive, and every motive to deal fairly. The letter was what it purported to be, a mere friendly act of courtesy, wholly voluntary, and intended to advise Comer of a fact which had occurred before he was made receiver and put him on his guard. Did it mislead Comer? The answer avers that it did, and that he had no other knowledge of a purpose to revoke the license than that contained in this letter. As to this the answer cannot be treated as evidence.

It is sworn to, but the defense of estoppel is not responsive to any allegation of the petition, and under the well-understood rule of equity pleading is not, on the hearing, to be read as evidence. It operated only to make an issue. The letter, read with any care, indicates, to one who knew the chain of title under which Comer held, some confusion or mistake as to date of notice.

On its face its-origin is ascribed to the changes which had occurred in the control of the property of the Chattanooga Eailroad Company “within the last two years.” It recites that notice had been given to the Chattanooga Eailroad Company. That company had sold out its road, and specifically assigned its interest in the terminals involved under the license, to the Savannah Eailroad Company, in May, 1891. If, therefore, notice had been given to the Chattanooga Company, it was most probable that it was given to it before it had sold out Ho change had occurred in the coiitrol of the property since March 26, 1892.

These facts, being personally known to Comer, should have caused him to make inquiry as to the date when the notice was given. If this letter had been attentively read, Comer would have discovered that there was some error in the reference to “March last” as the date of notice. Certainly no such presumption as that he has been injuriously misled will be indulged in, in the absence of some further evidence. That he relied upon the statement of the letter as giving the true date of the revocation, and that his nonaction was due to that reliance, are essential to an equitable estoppel.

That does not appear, and the decree is therefore affirmed.