
    MARY A. EGAN, Plaintiff and Respondent, v. EDWARD T. WALSH, KATIE A. WALSH, JAMES T. WALSH, MARY E. WALSH, ALICIA L. DOLAN, and JOHN B. DOLAN, her husband, Defendants and Appellants.
    Receives Pendente lite.
    1. DOWER, ACTION TO HAVE IT SET OFF.
    
      (a.) Receiver of all the rents and profits, may be appointed.
    1. Partition. Prior decree in, when no objection to appointment of receiver in the dower action.
    
    Such decree, having been made in 1867 (the dowress being a party defendant), and the sole plaintiff having after decree conveyed all her interest to the only co-defendant of the dowress, such co-defendant being the mother of the defendants in the dower suit (the plaintiff and co-defendant of the dowress in the partition being the sole owner or tenant in common of the fee in the property), and said mother of the defendants in the dower suit, having died in 1872, leaving the defendants in the dower suit her heirs at law, and it not appearing that the partition action had ever been revived, or that the defendants in the dower suit had ever been made parties to the partition suit, or that the commissioners appointed by the decree to make partition, and to set-off one-third to the dowress as and for her dower, had ever acted, presents no objection to the appointment of a receiver in the dower suit.
    
      Decided February 4, 1878.
    2. Circumstances which will warrant the appointment.
    
    See case.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.
    Appeal from an order appointing a receiver.
    The complaint set forth that James Egan died seized of certain real estate described, consisting of three houses and lots, leaving him surviving, the plaintiff, his widow, and two sisters, Catharine A. Walsh, and Julia Egan, his only heirs-at-law, and next of kin ; that Julia Egan, on March 31, 1868, conveyed all her interest in said real estate to Catharine A. Walsh, who on January 20,1872, died intestate, leaving her surviving, as her only heirs at law, the defendants in the suit (other than John B. Dolan), being her children; that plaintiff’ s dower has never been admeasured or set apart for her use and benefit, nor has any proceeding, either at law or in equity, ever been had or taken by her to have her dower admeasured or set apart; that the defendant, Edward T. Walsh, has been collecting all the rents since January, 1875, and has collected large sums ;. that he has refused to pay to the plaintiff the net one-third thereof, and there is a large sum of money due her by him, as well as the other defendants, on account of such rents; that in March, 1877, defendants, by two mortgages, mortgaged all their interests in and to said houses and lots, and there is great danger, unless the defendants are restrained from collecting and receiving the rents, that plaintiff’s interests will be prejudiced, and she suffer great loss ; that plaintiff has often demanded an account and statement of the rents received by said Edward, yet he, although admitting that he has collected large sums in rents, has refused and neglected to render any such accounts or statements.
    The complaint then prays that her dower in said real estate, and her interest in and to the rents, issues and profits may be set aside for her soíe use and benefit, so that she can collect and receive her one-third part thereof, in her own right; that defendants account for the rents received by them, and pay over to plaintiff such sums as shall be found due her ; that a receiver of the rents be appointed pendente lite, and that defendants be enjoined pendente lite from collecting, demanding, or receiving any of the rents, income, and profits of said real estate.
    Three of the defendants answered, and set up, as a first defense in bar, that, after the death of James Egan, and before the conveyance by Julia of her interest, as alleged in the complaint, Julia, about April, 1866, commenced an action in the supreme court, against Catharine A. Walsh, and her husband, and the plaintiff in this action, for a partition of said real estate, and for the admeasurement and assignment to the plaintiff in this action of her dower therein ; that the summons in that action was duly and personally served on all the defendants therein ; and that such proceedings were duly had in that action that judgment -was recovered therein, dated June 7, 1867, and entered June 25, 1867, by which judgment it was adjudged and determined by the said court that the said plaintiff in this action was entitled for her dower in the said premises mentioned in the complaint herein, as the widow of the said James Egan, deceased, to one undivided third part of the said premises during her natural life, and adjudged the same to her, and further adjudged that three commissioners be, and by said judgment they were appointed to set off and assign to the said plaintiff such one-third, pursuant to the said judgment and decree, to which reference is made for greater certainty; that this action is brought for the same identical cause, as respects the said plaintiff in this action, as the said action in the supreme court.
    That the said judgment in the supreme court still remains of record, wholly unreversed, and in full force and effect.
    The answer further set uj), as a second defense, that this action was brought without leave of the court; that, by reason of the matters alleged in the first defense, it is an action brought upon a judgment, and therefore it cannot be maintained, as being contrary to the provisions of the statutes prohibiting an action upon a judgment, except by permission of the court.
    The answer set up, as a third defense, that since January 1, 1876, the plaintiff had been paid by the defendant $900, on account of her dower interest in said premises.
    Plaintiff moved on the pleadings, and affidavits, supporting the allegations in the complaint as to the collection of rents, the non-rendering of accounts, and the giving of the mortgages by the defendants, and showing that no payments had been made to plaintiff since January, 1875, except $900, and that Edward T. Walsh is a clerk, not in any business on his own account, and outside of his interest as one of the heirs, has no property, and also showing that the mortgages given by defendants amounted to $3,000, for an injunction and receiver.
    Defendants, in opposition to the motion, read the judgment in the supreme court set up in the answer, and an affidavit of Edward T. Walsh, sworn to Nov. HI, 1877.
    This affidavit did not controvert any of the allegations of the plaintiff.
    It stated that the annual rental was, . . $3,068
    Annual expenses for taxes, repairs, insurance,
    and interest on mortgages .... $982
    
      It also contained the following averments:
    “And this deponent further says, that before the plaintiff is paid any more money at present, it is necessary to take into consideration, and reserve out of the rents for that purpose, the necessary taxes for the current year, namely, §450.50, and the sum of about §270 for arrears of taxes ; that deponent has paid from said rents the interest on the said §6,000 mortgage, which fell due on November 1, inst., being §210.
    “And this deponent further says, that this deponent and the other defendants, who are owners of the said real estate, subject to the plaintiff’s unadmeasured right of dower, are entirely solvent and perfectly good, and responsible for any amount that may be due, or that may become due, to said plaintiff for her right of dower in said premises ; that they own said real estate, subject to said right of dower, and subject to the incumbrances aforesaid; that the said real estate is reasonably and fairly worth the sum of §3.0,000 ; that there has been collected by deponent, since July 31, 1877, of the rents of said premises, the sum of §624, out of which deponent has paid, besides the above mentioned interest, §210, the sum of §258.10, for arrears of taxes, and has to pay the taxes for 1877, namely, §450.50, and the sum of about §270 for arrears of taxes, and has considerable repairs to make to the premises to keep them in tenantable order, and is also subject to divers incidental expenses in relation to the letting, and that the rents collected by him since such date, are not sufficient to pay all such sums.
    “And deponent further says that there is no danger whatever that the plaintiff will lose any of her * rights in said premises. That deponent has experienced great difficulty recently in collecting the rents on account of the fact that the premises are tenement houses, occupied by poor families, many of whom complain of being so deficient in work as not to be able to pay their rent promptly, and some of the tenants having been in arrears to a greater or less amount, some considerable time for their rent, and are paying along in driblets.”
    The court at special term granted the motion, and an order was made appointing a receiver of all the rents and income of the real estate mentioned in the complaint, and enjoining the defendants from collecting or receiving the said rents and income, or any part thereof.
    From this order defendants appeal.
    
      Nelson Smith & Leavitt, attorneys, and Nelson Smith, of counsel, for appellant, urged :
    —I. The judgment in the supreme court, entered in the suit of Julia Eagan against Catharine Walsh, and the plaintiff in this action, dated May 37, 1867, by which the plaintiff’s right of dower was adjudged and directed to be allotted and assigned to her, is a bar to this action to recover her dower. For this reason, a receiver should not be appointed (See opinion of Judge Jones, in Gregory v. Gregory, 33 Superior Ct. 39; Owen v. Homan, 3 McN. & G. 378).
    II. Under the judgment in the supreme court the plaintiff is entitled to have her dower immediately set off, and to take a proceeding upon the footing of that decree for any accounting in relation to the rentals. This suit is therefore entirely unnecessary, and upon the principle that a. receiver will not be appointed, where a plaintiff has a remedy at law, or any other adequate remedy, this appointment ought not to have been made (Solari v. Leaver, L. R. 9 Eq. 22; Parmley v. Tenth Ward Bank, 3 Edw. Ch. 395).
    III. The plaintiff, since 1867, has acquiesced in the present mode of managing the estate. Such delay and acquiescence, in itself, constitutes a good defense to an application for a receiver. The principle is, that a court of equity, where there has been long delay, will not appoint a receiver (Brown v. Chase, Walker (Mich.) 43; Could v. Tryon, Id. 351; High on Receivers, §14).
    IV. But, independently of these considerations, no case is made on the papers for the appointment of a receiver. (1.) In so far as the plaintiff claims to recover her share of the rents received by the defendants, the suit is in the nature of an action for money had and received by the defendants to the plaintiff’s use, and in that respect discloses no grounds for a receiver, any more than any action for money had and received, or to obtain an account for money had and received. The plaintiff is not entitled to any lien upon the premises for any balance that may be due in respect to the rents collected in the past, in regard to such rents, and would not be entitled to a receiver to enforce the payment of any such balance, any more than in any action to recover money. The order does not appoint the receiver of the moneys collected in the past; it is not shown, in fact that any of those moneys are now in existence, and the plaintiff’s remedy for any such balance is against the personal liability of the defendants. (2.) Before assignment, a widow’s right of dower is merely a right resting in action only, it does not give her any vested interest or right of entry upon the premises (Yates v. Paddock, 10 Wend. 528; Ritchie v. Putnam, 15 Id. 524, and cases there cited).
    V. There is no danger shown. This is a vital point (Willis v. Corliss, 2 Edw. Ch. 281, 287; Verplanck v. Cairns, 1 Johns. Ch. 57, 58; Orphan Asylum v. McCarty, 1 Hopk. 429; Goodyear v. Betts, 7 How. Pr. 187; Gregory v. Gregory, 33 N. Y. Superior Ct. 1-39; High on Receivers, § 11).
    VI. But in addition to this, there is nothing in the moving papers to show that the rents are in danger, or that the plaintiff has not an adequate remedy at law. Says Bowie, Ch. J., in Knighton v. Young (22 Md. 372), in speaking of an application for the appointment of a receiver: “It is not sufficient to allege that the rents are in jeopardy, but it must be shown how they are jeopardized.” (See also Haines v. Carpenter, 1 Woods Circ. Ct. 266; Willis v. Corlies, 3 Edw. Ch. 281; Clark v. Ridgely, 1 Md. Ch. Dec. 1870; Blondheim v. Moore, 11 Md. 365; Burt v. Burt, 41 N. Y. 46; Haggerty v. Pittman, 1 Paige Ch. 298).
    VII. Here the defendants have a two-thirds interest, and the plaintiff only one-third. Notwithstanding this, the order appointing the receiver embraces the entire property. It is, in effect, giving to to the plaintiff, as security for one-third of the income, not only her one-third, but two-thirds that belong to the defendants, in which she has no interest. This, we claim, was manifestly unjust, assuming that the plaintiff had a right to a receiver. There are here three distinct pieces of property, upon which there are five houses. If it were only intended to secure the plaintiff’ s right from the time of the appointment of the re-receiver, it would have been necessary to have extended the receiver only to one-third of the property, or to one of the lots having two houses upon it, instead of to the whole property.
    
      E. Yenni, attorney, B. F. Sawyer, of counsel, for respondent :
    —I. The complaint of the plaintiff presents a proper case for the appointment of a receiver, in puruance of section 713 of the new code. The plaintiff establishes a positive right to and an interest in the rents, issues and profits of the real estate to which she is entitled as dower right. The property is all in the possession of the adverse parties, the defendants; they use and occupy one of the houses. The defendant, Edward T. Walsh, in January, 1875, was duly appointed by the other defendants and this plaintiff to collect and receive the rents, and to pay over to this plaintiff her one-third part thereof. Since his appointment, up to the present time, he has never accounted or rendered any statement of the amounts of rents and income, nor of the payments, although repeated demands have been made of him so to do. The defendant, Edward T. Walsh, has admitted that there is a large sum due the plaintiff on account of the rents and income so received by him.
    II. The plaintiff also has shown that there is great danger that her rights and interests will be jeopardized unless a receiver is appointed. 1st. The defendants, in March, 1877, mortgaged all their interest in the property. 2nd. The defendant, Edward T. Walsh, has neglected to pay arrears of taxes of 1876, although collecting all the rents. 3rd. The defendants are using and occupying one of the houses without paying any rent or accounting for any rent.
    III. The defendants set up in opposition to the motion a decree made in the supreme court in June, 1867, in an action wherein Julia Egan was plaintiff and Catherine Walsh and this plaintiff and others were- defendants. This decree does not affect the merits of this present suit. 1st. Julia Egan, the plaintiff therein, after the decree, conveyed all her interest in the real estate to Catherine Walsh, the mother of the defendants in this action. 2nd. The said Catherine Walsh died in 1872, leaving the defendants in this action her heirs-at-law. 3rd. That action has never been revived, nor are the defendants in this action parties to the same. 4th. The commissioners appointed by the court have never acted, and the decree has laid dormant for over eleven years. 5th. The complaint in this action is for an accounting of only the rents and income of the real estate since 1875, under an express agreement. 6th. Either party to the decree could have had it executed.
   By the Court.—Freedman, J.

—Upon the whole case, as it was made to appear on the motion below, sufficient grounds appeared to authorize the court, in the exercise of a sound discretion, to appoint a receiver during the pendency of the suit. The action is in a condition to be tried at once, and at the trial the rights of all parties can be more satisfactorily determined than upon the present appeal.

The papers submitted presenting a case within the rule warranting the order as made, the order appealed from should be affirmed, with costs.

Curtis, Ch. J., and Sedgwick, J., concurred.  