Page:Federal Reporter, 1st Series, Volume 10.djvu/123

 OLNET V. TANNES. 111 �undertook to justify by.pleading the receiver's authority, and alleged title to the property taken. Emott, J., says : �The defendants have not the right to litigate that question in the present action, but only the validity of the sale inter partes. The receiver not only stands in the place of the debtor, but represents creditors, and can, therefore, in a proper way impeach fraudulent acts of the debtor; but in neither capac- ity could the receiver justify the forcible seizure of this property if it had been sold to the plaintiff by an actual and complete trarisfer, so as to make a valid sale between him and his vendor. The receiver could uot question such a transfer as representing the judgment debtor, * * * nor could such a defence be interposed in this suit by this offlcer as representing the creditors; because this property, even if transferred with a design to delay and defraud them, did not for that reason belong to them, so that they or their represen- tatives could exercise an immediate control over it. * * * Until an exe- cution is levied upon personal property the judgment crediter has no right in it or control cover it. But the receiver does not stand in the place of an execu- tion. The only way he can intervene in behalf of creditors in such cases is by instituting a suit to impeach and set aside the validity of such transfers. �To the same effect is TelUr v. Randall, 40 Barb. 242, and People V. King, 9 How. (N. Y.) 97. �In Bostwick v, Menck, 4 Daly, 72, Robinson, J., says: �" The fraudulent assigner could not impeach his own assigninent, nor could any other person do so except as a crediter by judgment, al'ter execution thereon had been returned unsatisfled, who should by his own suit, or through a receiver appointed in his behalf, evince his dissent thereto by assailing it in a direct proceeding instituted for the purpose of avoiding it." �In the superior court it has been still more explicitly decided that the receiver has no title nor lien in respect to such property until the commencement of his suit. Fields v. Sands, 8 Bosw. 685; Conger v. Sands, 19 How. (N. Y.) 8. �In Fields v. Sands the court say : �" Such proceedings (supplementary) no more croate a lien upon the assigned property than would a judgment creditor's suit against the debtor only. Such proceedings do not affect property vested in a third person. * * * The receiver merely obtains authority to litigate the validity of the transfer by a suit against the assignee." �In Bostwick v. Menck, 40 N. Y. 383, the receiver had been appointed upon a small judgment of $200. In setting aside a fraudulent assign- ment he had recovered by the judgment below the whole assigned property, some $15,000, upon the theory that he was vested with the title of the whole property in trust for all the creditors. This judg- ment was reveraed, and his reoovery limiied to the amount of the ��� �