
    THOMPSON a. SHERRARD.
    
      Supreme Court, First District;
    
    
      General Term, September, 1861.
    Receiver.—Ejectment.—Mesne Profits.
    In an action to recover possession of real property, with damages for the wrongful withholding thereof, it is not regular or proper to appoint a receiver of the rents and profits of the property in controversy.
    The provisions of the Revised Statutes (2 Rev. Stat., 309, §§ 36, 37, 38) declaring and restricting the force and effect of judgtnents in'actions of ejectment, have not been repealed by the Code.
    
      In such actions, the plaintiff, on recovering judgment for the possession of real property, is not entitled to recover, of course, as damages for the unlawful withholding of possession, the precise rents received from the property.
    Appeal from an order appointing a receiver.
    This was an action to recover possession of lands, and damages for withholding them. The premises claimed consisted of a lot of land, with a tenement house thereon, in the city of Hew York. The defendant Sherrard occupied a portion of the premises as a residence, and rented the remainder, in small portions, to the other defendants, at small monthly rents, Immediately after the service of the summons and complaint, and before answer, the plaintiffs moved at special term for the appointment of a receiver of the rents and profits of the property described in the complaint. The defendants opposed, but the motion was granted by the court. The defendants appealed to the general term.
    
      Abraham R. Lawrence, Jr., for the appellants.
    —I. No receiver should be appointed in an action to recover the possession of real estate. 1. TSTo such practice existed in an action of ejectment. The appointment of a receiver belonged exclusively to courts of equity, and they were never appointed in common-law actions. (Adams on Ejectment.) 2. The Code has made no change in this respect. The provision of section 244 of the Code does not contemplate actions to recover the possession of real property. That section refers to actions brought to set aside fraudulent conveyances, or to enforce a specific performance, or any other of the ordinary proceedings in courts of equity in relation to real estate. 3. Actual possession is primar facie evidence of a legal title to real estate. (Jackson a. Town, 4 Cow., 599; Record a. Williams, 7 Wheat., 59.) The court will not deprive parties who in presumption of law are the legal owners, of the rents and profits of their premises, until by a regular trial the presumption' of law has been overthrown. 4. The law affords to the plaintiffs an adequate remedy for the loss of rents and profits, in case it shall be determined that the defendants are not entitled to the possession of the lands in question, by an action for the mesne profits. (Code, § 167, sub. 5.) 5. The case of The People and Taylor a. The Mayor, &c., of New York (10 Abbotts’ Pr., 111), is the only authority for the appointment of a receiver in a case like the present. In that case it was not necessary that the point should be determined ; and the learned justice seems to have overlooked the fact, that to allow a receiver in such a case would be virtually determining the action against the defendant prior to a trial, and depriving him of the means to enable him to resist the plaintiff’s claim.
    II. To entitle a party to have a receiver appointed, he must show by his affidavit every fact which must exist, to warrant the court to exercise such summary power. 1. The inference to be drawn from the allegations of the affidavit is, that the other defendants are tenants of Milly Ann Sherrard. 2. Conceding that a receiver may be appointed in an ejectment-suit, such relief will not be afforded in such an action where the sub-tenants of the principal defendant are joined as co-defendants with him. (People a. Mayor, &c., 10 Abbotts’ Pr., 111, per Mullin, J.) 3. To allow a receiver in such a case would involve this absurdity. The collection of rents by the receiver would be a clear recognition of the principal defendants’ right to lease the land, and the receiver would be deriving rent from a lease which the plaintiffs in the suit claim to be invalid. (10 Abbotts’ Pr., 111, per Mullin, J.) 4. The court should not assume that the plaintiffs intended to allege that the other defendants were tenants of John Thompson, for the reason that the appointment of a receiver against a party in possession of real property in an action brought to. recover the possession of that property, is a strict technical remedy in favor of which no presumption should be indulged.
    III. The effect of the order at the special term is to deprive the defendants of the benefit of the possession of a large portion of the premises in question, without a trial of their right to that possession.
    IV. The case of The People and Taylor a. The Mayor, &c., of New York, proceeds upon the principle that equity may require that such an appointment should be made. (10 Abbotts* Pr., 111.) No such equity exists in this case. The defendant, Milly Ann Sherrard, is the nearest relative to John Thompson, the plaintiffs’ ancestor, living in this country, and the person for whose benefit the premises in question were purchased. The plaintiffs seek to deprive the defendant, Hilly Ann Sherrard, of the premises in question, on the ground of her alienage, —the fact that the plaintiffs are the heirs-at-law of the decedent being yet to be proved. There surely can be no equity in straining the power of the court to favor the plaintiffs in such an action.
    
      George Stephenson, for the respondents.
    —I. The Code provides (§ 244): “A receiver may be appointed, before judgment, on the application of either party, when he establishes an apparent right to property which is the subject of the action, and which is in the possession of an adverse party, and the property, or its rents and profits, are in danger of being lost, or materially injured or impaired, except in cases where judgment upon a failure to answer may be had without application to the court.”
    II. The plaintiffs established by affidavits an apparent right to the property. They are the only persons entitled to inherit from John Thompson, deceased,—the defendants Sherrard being aliens at the time of said John Thompson’s decease. 2. The children of Sherrard could not inherit through their mother, an alien, still living. (See McLean a. Swanton, 13 W. Y., 535.)
    III. The plaintiffs also showed that the, rents and profits of the property were in danger of being lost,—Sherrard, who was receiving the rents, being wholly irresponsible.
    IV. An order appointing a receiver is not an appealable order. It relates only to the preservation of the property, and does not affect the rights of the parties. (See Chapman a. Hammersley, 4 Wend., 173.)
   By the Court—Sutherland, J.—Before

the Code this would have been called an action of ejectment. It is an action to recover the possession of certain real estate in the city ot Hew York, and damages for the wrongful withholding thereof.

On the complaint and affidavits before answer, and on the motion of the plaintiffs, an order was made at special term appointing a receiver of the rents and profits of the property described in the complaint.

The case comes before us by appeal from this order.

The question is, whether the order appointing a receiver was regular and proper.

I think it was not, and that the order should be reversed, with costs.

It appears from the affidavits that the real estate claimed consists of a lot of ground with a tenement house thereon. That at the time of the commencement of the action, the defendants Robert Sherrard and wife were in the occupation of certain rooms, or a certain part of the house, and that the other defendants, Lenathan, the Coulters, Transquist, Greenwood, and Norwood, were in the actual occupation of the other rooms, or parte of the house, as tenants, paying certain specific cash rents to Robert Sherrard. It is these certain and specific cash rents which, by the order, I suppose, it was intended the receiver should be made the receiver of.

It is doubtful whether Sherrard and his wife could properly be joined as defendants with the tenants, the other defendants. (The People a. Mayor, &c., of N. Y., 8 Abbotts’ Pr., 7, 15; S. C., 17 How. Pr., 56; opinion at p. 65, and cases there cited.)

As to the part of the premises actually occupied by Sherrard, he was the only proper defendant; perhaps his wife might have been joined with him. As to the other parts of the premises actually occupied by the tenants paying rents to him, he could at his election, by motion, be made a defendant under the provisions of the Revised Statutes (2 Rev. Stat., 341, 342, § 17), but it would appear that even under the Code he could not properly be made a defendant at the election of the plaintiffs, by naming him in, and serving him with the complaint, as to the parts of the premises actually occupied by his tenants. (The People a. The Mayor, &c., above cited, and the cases there cited.)

But it is not necessary in disposing of this appeal to decide whether Sherrard could properly be made a defendant with his tenants, as to the parts of the premises not occupied by him, but actually occupied by his tenants; or whether a joint action could be brought against him and them for the several parts actually occupied by him and them.

It is plain, independent of these questions, that the appointment of a receiver in the action was irregular and improper.

Such appointment was not consistent with the nature of the action and the relief sought, or with the provisions of the Revised Statutes (2 Rev. Stat., 309, §§ 36, 37, 38), declaring and restricting the force and effect of judgments in such actions, even as between the parties.

These provisions have not been repealed by the Code. (Lang a. Ropke, 1 Duer, 701; Chautauqua County Bank a. White, survivor, &c., recently decided by the Court of Appeals, not yet reported.)

If the plaintiffs recover a judgment in this action, the defendant or defendants against whom the recovery shall be had, will be entitled of course by section 37 of the statute above referred to, at any time within three years thereafter, to have the judgment vacated, and to a new trial in the action.

In the mean time what is to become of the rents and profits of the premises in the hands of the receiver? To whom do they belong, and what is the receiver to do with them ? If paid over to the plaintiffs on their obtaining judgment, the plaintiffs may have to pay back such rents and profits either to the receiver or the defendants on the termination of the second trial. I do not see why the defendants, on the judgment which the plaintiffs may obtain being vacated and new trial ordered, would not have the same right to have a receiver appointed on their motion as the plaintiffs had on commencing the action on their motion, and thus the rents and profits might shift from receiver to receiver, or from party to party, until the second judgment in the action is obtained.

But even the second judgment is not conclusive as between the parties as to the title. By the same thirty-seventh section the court may, within two years after the second judgment, grant another new trial.

Again, the appointment of a receiver in this action must have been made upon the theory that if the plaintiffs recovered the possession of the premises, they would also be entitled to recover as of course, as damages for the unlawful withholding of the possession, the precise rents, or amounts of the rents, paid or payable by the tenants to Sherrard. But this is all a mistake. The action for the possession of land, under the Code, is brought, as ejectment before the Code was brought, against the defendants as trespassers; and the claim against them for mesne profits was, and is still, a claim against them as trespassers for the wrongful withholding the possession. Can it be claimed that it is regular and. proper to appoint a receiver to receive damages to be recovered in an action of trespass ?

I again refer to my opinion in the case of The People a. The Mayor, &c., on this point. (Supra.) 
      
       Present, Gierke, Sutherland, and Barnard, JJ,
     