Foster v. Townshend. to set aside a fraudulent or forbidden conveyance, if his possession is not interfered with.* Such receiver is entitled to the possession and the rents and profits, but as long as there is no interference with these, he has no concern with the title to the realty, nor any interest in the determination of adverse claims. Any proceeding to compel the application of the rents and profits, or in any way to compel payment of alimony from property sequestered for that purpose, must be had by the party in whose interest the sequestration was ordered. A conveyance of the legal title of real estate, either by grant or under a mortgage foreclosure, is not inconsistent with, or necessarily adverse to the possession or rights of a receiver of the rents and profits. The remedy of a receiver of the rents and profits of sequestered real estate, against an adverse claim to such rents and profits, is by an order for an examination of the claimant, pro interesse suo, and such proceedings thereon as would lead to an adjudication of the rights of the parties. * A court of equity is competent, through sequestration, to lay hold of the property, of every description, any where within its jurisdiction, of a party in contempt for not obeying its decree; and to apply it in satisfaction. Where a decree for a purely equitable demand remains unsatisfied the court can enforce it in this way upon a new bill. White v. Geraerdt, 1 Edw. Ch. 336; People v. Rogers, 2 Paige, 103. Compare Hosack v. Rogers, 11 Id. 603; Fassett v. Tallmadge, 14 Abb. Pr. 188; People ex rel. Griffin v. City of Brooklyn, 5 How. Pr. 314; Brinton v. Wood, 19 Id. 162; Rankine v. Elliott, 16 N. Y. 377; affi'g 14 How. Pr. 339; Angell v. Silsbury, 19 Id. 48; Libby v. Rosekrans, 55 Barb. 202; Corning v. Mohawk Valley Ins. Co., 11 How. Pr. 190. As to sequestration of corporate property after judgment and execution, see, also, 2 R. S. 463, § 36, 6th ed. vol. 3, p. 748. As to sequestration for non-payment of taxes, see 1 R. S. 418, § 22; L. 1857, c. 456, § 6; Same stat. 1 R. S. 6th ed. 983. For other cases on the general subject beside those cited in the opinions in the case in the text, see the following: Clinton v. Clinton, 1 L. R. P. & D. 215; Burne v. Robinson, 7 Ir. Eq. R. 188; Miller v. Ker, 1 C. & K. 38; Ward v. Booth, 14 L. R. Eq. 195; L'd Pelham v. Ds. Newcastle, 3 Swanst. 289; Dent v. Dent, 1 L. R. P. & D. 366; Cowper v. Tayler, 16 Sim. 314; Crispin v. Cumano, 1 L. R. P. & D. 622; Claydon v. Finch, 15 L. R. Eq. 266; Cavil v. Smith, Foster v. Townshend. Appeal by defendant from a judgment of the N. Y. common pleas, affirming, with modification, a decree at special term. John A. Foster, receiver of the real and personal estate of Thomas W. Carey, brought this action against Townshend, McMullen, and others, to set aside a deed and an assignment of a mortgage, and for an injunction, &c. In November, 1867, Thomas W. Carey was the owner in fee of a certain vacant lot in the city of New York, together with other property. During that month his wife Mary commenced an action against him in the N. Y. common pleas, for a limited divorce, and on the 25th of the same month an order was made for payment by him of alimony for the support of herself and children. The alimony not being paid, an injunction was served on Carey on December 6, 1867, restraining him from parting with his real estate; and on the 13th of the same month an order was made under 2 R. S. 148, § 60, directing an attachment against him, and appointing the plaintiff receiver of Carey's real and personal property, to hold it until he should give security for the payment of the alimony. The provision of the statute under which the order was made (2 R. S. 148, § 60, 6th ed. vol. 3, p. 159) is as follows: 60. Whenever the court shall make an order or a decree, requiring a husband to provide for the mainten 3 Bro. C. C. 362; Cadell v. Smith, 3 Swanst. 308; Bray v. Hooker, Dick. 638; Ray v. — 3 Swanst. 306; Harding v. Hall, 10 M. & W. 42; 6 Jur. 649; Wood v. Adams, Dick. 576; Rowley v. Ridley, Dick. 622; Goldsmith v. Goldsmith, 5 Hare, 123; S. C., 15 L. J. (N. S.) Ch. 264; 10 Jur. 561; Ward v. Hayes, 1 Hog. 107; Ridgway v. Davis, 2 Jones, 507; Brown v. Cuffe, 1 Hog. 145; Wilson v. Metcalfe, 1 Beav. 263; S. C., 8 L. J. (N. S.) Ch. 331; 3 Jur. 601; Empringham . Short, 3 Hare, 461; S. C., 13 L. J. (N. S.) Ch. 300; 8 Jur. 856; Rose v. West, 50 Ga. 474. Foster v. Townshend. ance of his children, or for an allowance to his wife, the court may require such husband to give reasonable security for such maintenance and allowance; and upon the neglect or refusal of the defendant to give such security, or upon the default of him and his surety to provide such maintenance and allowance, the court may sequester his personal estate, and the rents and profits of his real estate, and may appoint a receiver thereof, and cause such personal estate, and the rents and profits of such real estate, to be applied towards such maintenance and allowance, as to the court shall, from time to time seem just and reasonable.” On December 18, 1868, Carey conveyed the lot above mentioned, to John Whyte for $4,000, subject to a mortgage to one Azel Graham for $1,500; and Whyte at the same time executed a mortgage upon the lot to Carey for the sum of $1,000 and interest, that being regarded as equivalent to the value of Carey's wife's right of dower in the land, which mortgage was made payable upon her death, or upon the release of her dower right; and Carey afterwards assigned this mortgage to Townshend, his lawyer, for the nominal consideration of one dollar, which assignment purported to have been made to secure moneys advanced and to be advanced by Townshend to Carey, and for legal services rendered and to be rendered by him to Carey. It was to set aside these transfers that the action was brought. A demurrer to the complaint was overruled (12 Abb. Pr. N. S. 469), and defendants answered. The cause was tried by the court at special term. The judge at special term found that this deed to Whyte, and assignment to Townshend, were made to hinder and defraud the wife in the enforcement of her rights in the divorce suit, and decreed that they were void as against the receiver, and the executors of John Whyte were directed to give the receiver a deed releas Foster v. Townshend. ing the property, and Townshend was directed to discharge the mortgage and enjoined from assigning or foreclosing the mortgage. On appeal to the general term this decree was modified by not requiring a reconveyance by Whyte's exThe following opinion was rendered on the ecutors. appeal. DALY, Ch. J.*—[After stating the receiver's appointment and the statute above given.]-This statutory provision is, in effect, the same power which courts of equity previously exercised in sequestrating personal and real estate,† to enforce performance of their orders and decrees; and in the disposition of the questions raised in this case, it will be necessary first to understand what was the operation and effect of a sequestration of a defendant's personal and real property in equity. It was a seizing and taking hold of the property, real or personal, or both, by sequestrators appointed by the court, and holding it until he performed the act directed to be done. It was in equity very nearly what the writ of levari facias was at common law; the goods and chattels were taken into possession, and with the permission of the court might be sold, and the lands were seized and held, the rents. and profits being collected by the sequestrators, and applied or allowed to accumulate, or were otherwise disposed of, as the court might direct (Att'y Gen. v.. Coventry, 1 P. Wms. 307; Bligh v. Darnley, 2 Id. 621; Wharan v. Broughton, 1 Ves. Sr. 180, 184; Desbrow v. Crommie, Bunbury, 272; Shaw v. Wright, 31 Ves. 22, 23; Mitchell v. Draper, 9 Id. 208; White v.. Geraerdt, 1 Edw. Ch. 336, 340, 341; Daniel's Chancery Pr. 1254-1276; 2 Tidd's Pr. 993, 1042, 9th Lond.. Ed.). In respect to the real estate, the right extended. * Present, CHAs. P. Daly, Ch. J., and J. F. DALY and LOEw, JJ. + See note, page 30. VOL. II.-3 Foster v. Townshend. only to the possession, to the sequestering or receiving of the rents and profits; to the making of leases, &c., &c., the legal estate, in the language of Lord Chancellor CowPER, "remaining, in every respect, as before" (Att'y Gen. v. Coventry, 1 P. Wms. 307). Lord HARDWICKE said, in Hyde v. Greenhill, 1 Dick. 107, that a sequestration covered the personal estate and the rents and profits of the real estate, but not the land; showing that the court, under a sequestration, never assumed the power of disposing of the land, which further appears from Sutton v. Stone, 1 Dick. 107, in which an application was made to sell a leasehold estate which had been sequestrated; and Lord LOUGHBOROUGH held that it could not be done. "Who," said he, "is to make out the title." [The learned chief judge here recited the facts as to the conveyances above stated, and proceeded as follows:] The judge was fully warranted in finding, upon the evidence, that the conveyance of the lot by Carey to Whyte, and the mortgage by Carey to Townshend, were made with this [fraudulent] intent. Whyte knew of the injunction, and of the appointment of the receiver. He discussed both matters in the presence of the witness, Henry W. Carey. He was an intimate friend of Carey's, and co-operated with him in getting Carey's stock of goods removed from the latter's store in the city, to his, Whyte's store, in Jersey City. Townshend was Carey's lawyer in the divorce suit, and prepared both the deed and the mortgage. He admitted, when examined, that he knew that Carey was enjoined by the court from transferring any of his property. He was asked why he allowed his client, under such circumstances, to make a conveyance of his property, and he answered that he considered that Carey had the legal right then to convey it, if he chose to take the chances of the punishment that the court might inflict upon him for a disobedience of the injunction. |