
    George W. Cone v. D. Paute et als.
    
    1. PRACTICE. Supreme emit’ft supersedure of interlocutory orders. The interlocutory orders or decrees that may be superseded by the supreme court (under Code, secs. 3933 and 4513), are such only as are oí a nature to be actively and affirmatively enforced.
    Ca»ses cited : MoM. & M. R. It. Oo. v. Huggins, 7 Col., 217; Mabry v. Ross, 1 Heis., 769.
    2. Same. Instance of such order. An order appointing a receiver, to take-charge of and rent out property, etc., is such an interlocutory order as may be thus superseded.
    3. Same. Statement of case. The receiver was appointed at the instance oí a creditor with a lien fixed by a-bill filed under Code, sec. 4286, upon a return of nulla bona, to reach the debtor’s residuary equitable interest in the property involved, after the satisfaction of certain deeds of trust; the grounds of the appointment being the failure of the debtor, who was receiving the rents, to keep down the taxes, and the insufficiency of the property to satisfy complainant’s debt, prior liens, being first paid. Affidavits and counter-aifidavits were submitted as to the value of the property, the quality of which evidence the Chancellor could best appreciate; and the appointment being a matter for his sound discretion, and this not appearing to have been abused, the-supreme court declined to interfere therewith.
    PROM SHELBY.
    There are no briefs on file.
   Nicholson, C.-J.,

delivered the opinion of the court.

This is a petition of the defendant, Paute, for an order superseding an interlocutory decree made in one of the chancery courts at Memphis, appointing a receiver to take charge of, and rent out, certain real estate, for the purposes therein stated,

It was determined in the case of the McMinnville & Manchester Railroad Company v. Huggins, 7 Col., 217, that the interlocutory decree which this court may supersede, or stay proceedings under, is one which is of a nature to be actively enforced against the party.

This construction of the statute was followed in the case of Mabry v. Ross, 1 Heis., 769.

The appointment of a receiver, to take property out of the possession of a party, and appropriate its rents and profits to the payment of taxes, accrued and accruing, as in this case, is such an interlocutory decree as may be superseded by this court whenever a proper case is made out.

The Chancellor made the decree in this case upon the ground that the defendant, Paute, was in possession of the property involved in the controversy, receiving the rents and profits, but failing to remove and keep down the accumulating incumbrances of State, county, and city taxes, — the complainant being a judgment creditor of Paute, with a bill filed, after return of execution nulla bona, to reach and subject the equitable interest of Paute in the property.

The bill was filed to foreclose deeds of trust on the lands, and to reach the equitable interest of Paute after the satisfaction of prior liens and incumbrances; and to this end, a receiver was prayed for pendente lite.

Under sec. 4286 of the Code, a specific lien was-fixed upon the property by the filing of the bill; and, upon thus fixing his lien, the creditor was entitled to make application to have a receiver appointed.

This application was addressed to the sound discre■tion of the Chancellor. Kerr on Receivers, 5 and 57; ■19 "Vesey, 631; 4 Paige, 575; 7 Paige, 56.

The only question remaining is, whether this is a •case- that calls for our interposition in controlling and overruling the. discretion exercised by the Chancellor.

From the affidavits and counter-affidavits, as to the value of the property, the Chancellor thought it at least doubtful whether the corpus of the property was ■sufficient to pay the complainant’s debt.

With much better means of weighing the testimony •of the affiants than we can have, the Chancellor’s conclusion on this material point is entitled to great weight; and as we cannot undertake to say that his discretion has been abused, we are constrained to refuse the application.  