
    ROGERS against MARSHALL.
    
      Supreme Court, First District ; General Term,
    July, 1869.
    Actior for Lards. — Receiver. — Colleotior of Rerts.
    In an action to recover the possession of real property, on the ground that judicial proceedings by which the title of plaintiff’s ancestor was apparently divested, and the lands transferred to the defendant’s ancestor, were void for fraud, mistake, and want of jurisdiction, the court have power to appoint a receiver and grant an injunction to preserve the property and the proceeds of it pending the litigation.
    These provisional remedies should be granted where it is shown upon the plaintiff’s application therefor, in such a case, that the defendants are irresponsible, that they are collecting rents which they are unable to refund and will probably be lost if they are not restrained, and that the premises are in a ruinous condition by reason of their neglect, and will continue to deteriorate.
    Appeal from an order.
    This action was brought by William C. Rogers against Mary Marshall and others, to recover certain premises in the city of Hew York, which in 1855 belonged to Lewis C. Rogers, the father of the plaintiff. They were then heavily incumbered to nearly if not quite the amount of their value, and their owner was insolvent. In that year one Maginn recovered a judgment, directing the premises to be sold by the sheriff for the satisfaction of a mechanics’ lien filed by Maginn ; and at the sale they were bought in by one Singer, who at the time held a second mortgage upon the property. There was some question about the actual time at which a change of possession took place, but when the present action was brought the premises were in possession of the defendants, the defendant Mary Marshall claiming title under Singer.
    The plaintiff insisted that the alleged lien under which the premises had been sold had been in fact paid and satisfied by his father, prior to the sale ; and that the subsequent proceedings were wholly unauthorized ; and he also alleged fatal irregularity in the deed from the sheriff, under which the defendants claimed.
    The defendants claimed not only under the sheriff ’ s sale, but also as mortgagees in possession ; and insisted on the statute of limitations as barring plaintiff’s right to redeem.
    The plaintiff alleged that the defendants were irresponsible, that they were collecting the rents and profits, which they were unable to refund, and which would be wholly lost, unless they were restrained from so doing ; and that they had permitted the premises, during their occupation, to fall into a ruinous and dilapidated condition, which was constantly growing worse, so that unless the same were placed in the hands of a receiver the plaintiff would suffer irreparable damage.
    Upon the complaint, supported by an affidavit of Maginn, the plaintiff obtained an order for an injunction and receiver, from which order the defendants now appealed. „
    
      A. C. Morris, for the appellants.
    I. The plaintiff’s allegations are insufficient, and the equities are denied.
    
      II. There is no precedent for the appointment of a receiver in a case like the present. The plaintiff might as well ask for a receiver in an action of ejectment (Willis v. Corlies, 2 Edw. Ch., 281; 3 Id., 304, 312 ; 246; People v. Davidson, 4 Barb., 112.
    III. An injunction or receiver is never granted when the whole equity of the complaint is denied (18 How. Pr., 186, et passim).
    
    IV. But assuming the sale to Singer to be void, then Singer and his representatives, being mortgagees in possession, cannot be disturbed without a redemption.
    
      George W. Wingate, for the respondents.
    I. The foreclosure sale and deed under which defendants claim, was void under the circumstances shown.
    II. The obtaining the deed was also shown to be a fraud on the plaintiff.
    III. The statute of limitations is no bar to the plaintiff’s recovery. (1.) As far as the alleged sale and deed under the foreclosure of the mechanics’ lien is concerned, this is an action of ejectment, which cannot be barred in less than twenty years. (2.) If it be shown that the sale was an arrangement .between Rogers and Singer, and that the latter only took a certifícate to accomodate Rogers, he was a trustee in whose favor the statute does not run (McDonald v. May, 1 Rich. Eq. [S. C.], 91). (3.) Besides, the obtaining of the deed was a fraud on Rogers and his heirs, and in such a case the statute does not run until six years after the discovery of the fraud (Ward v. Van Bokelin, 1 Paige, 100 ; Shears v. Shafer, 6 N. Y. [2 Seld.], 268; Code, §91). (4.) The defendants’ claim to be mortgagees in possession is entirely inconsistent with a plea of the statute of limitations to an action to redeem, and is a bar to such a defense. 1 (5.) Again, the deed which it is sought to set aside only became a cloud on the title by being recorded April 5, 1861.
    IV. The appointment of a receiver was proper. (1.) The plaintiff has established a prima facie title, as above shown, and there was no denial of the defendant’s irresponsibility, or that the rents and profits were being lost and the premises were being allowed to fall into ruin. The case, therefore, came directly within the rule that “ whenever it is necessary for the preservation of the property pending the litigation, a receiver should be appointed” (Lawrence v. Greenwich Ins. Co., 1 Paige, 587; Hamilton v. Accessory Transit Co., 3 Abb. Pr., 255 ; Edwards on Receivers, 18). (2.) The fact that defendants claim to be mortgagees in possession, while allowing the premises to perish, and the rents to be lost, is sufficient in itself to justify the appointment of a receiver. When the fund is in danger, and there has been negligence or improper conduct of a trustee, the appointment of a receiver is a matter of right (Jenkins v. Jenkins, 1 Paige, 243). (3.) The cases cited by the appellants do not apply. • They were all ejectment cases, pure and simple, under the Revised Statutes, and were put upon the ground that the statute provisions in regard to redemptions and new trials were inconsistent with the idea of a receiver. Also, that the plaintiff did not claim the rents and profits, but damages which no receiver could be appointed to collect (Thompson v. Sherrard, 35 Barb., 593). On the other hand, in People v. The Mayor (10 Add. Pr., 117), the general term of the first district distinctly held in an action of ejectment, that although a “receiver would not be generally appointed” in such cases, “ yet that where some equitable grounds appear, entitling the plaintiff to the rents and profits as such, and that their sequestration is necessary for his protection on account of the insolvency of the defendant, a receiver may be appointed.” See cases supra.
    
   By the Court. Clerke, J.

This is totally different from an action of ejectment.

It seeks relief on the ground of fraud, mistake, and want of jurisdiction, in the court in which the proceeding's to foreclose the alleged lien of Maginn were commenced.

It clearly presents, therefore, precise grounds for the equitable interposition of this court, and in such cases we never refuse preliminary injunctions, and the appointment of a receiver, if the condition of the subject of the controversy requires the aid of these provisional remedies.

From the plaintiff’s complaint, and affidavits upon which the injunction was obtained and the receiver appointed, it is evident that the defendants are irresponsible, that they are collecting the rents which they are unable to refund, and which probably will be lost if they are not restrained.

It appears also, that the premises, in consequence of their incapacity or neglect, are in a ruinous condition for the want of repairs, and that they will continue to deteriorate if they remain under the control and in the possession of the defendants.

The order should be affirmed with costs.

Barnard, J.

The only question in this case is our power.

The facts established in the papers by the plaintiff clearly entitle him to the relief, if it can be given.

In the case of People v. Mayor (10 Abb. Pr., 117), decided by the general term of this district, it was expressly so held.

The order should be affirmed with costs. 
      
       Present, Clerke, P. J., and Cardozo and Barnard, JJ.
     