
    T. H. Mays and Wife v. E. C. Wherry and others.
    April Term, 1875.
    Receiver — Possession or propekty. — A receiver will not be appointed where the person in possession is no party to the suit, or claims under the party who moves for the appointment.
    
      J. P. Helms, for complainants.
    
      P. Ewing, for Wherry.
    
      M. O. Ooodlett, for Spence.
   The Chancellor :

Motion to appoint a receiver. The complainant’s wife having, previous to her marriage, recovered two judgments against the defendant Wherry, the complainants caused executions to issue thereon, which were levied upon a lot in Edgefield, and a tract of land in the country containing sixty-four acres. At the sale made under these levies the sheriff sold both parcels of land together, and complainants purchased in satisfaction of their judgments. They brought ejectment for the Edgefield lot; but, on the trial, the Circuit Court held the sale void because the two parcels of land were sold together, instead of separately, and the ruling was affirmed by the Supreme Court. Mays v. Wherry, 2 Baxt. 133. This bill was thereupon filed, to set aside the satisfaction of the judgments by the purchase at the void sale, and to subject the land under a decree of this court. The answers, which are filed as cross-bills, and the answers to these cross-bills, show that the defendant Wherry is not in possession of either of the pieces of realty. The lot in Edgefield, it appears, has been sold by execution issued on the judgment of another creditor against Wherry, and bought by such creditor, and is now in the possession of still another creditor, who redeemed from him. It further appears that the complainants took control of the sixty-four-acre tract of land under their purchase, and sold to the defendant Spence, who is now in possession.

The court can only appoint a receiver of property when the person in possession is before the court. Sea Ins. Co. v. Stebbins, 8 Paige, 565. No receiver can be appointed,, therefore, for the Edgefield lot. And the complainant has clearly no right to demand that the possession of his own vendee of the land in the country shall be disturbed ; at any rate, in the absence of any charge of insolvency, or any facts upon which the appointment of a receiver can be, rested. The application must be refused.  