Simmons v. Allison, 118 N.C. 761 (1896)

Feb. 1896 · Supreme Court of North Carolina

118 N.C. 761

R. H. SIMMONS, et al. v. ALEXANDER ALLISON, et al.

Deceivers — Control of Property — Discretion of Court.

The custody of a receiver is the custody of the law, and the court, having power to instruct such receiver as to the exercise of his duties, may, in its sound discretion, direct to whom the property in the receiver’s hands shall be rented. Unless grossly abused, the exercise of such discretion is not reviewable.

PetitioN of defendants to rehear case, in which a per curiam, judgment (without written opinion) was rendered at February Term, 1895, of the Supreme Court, affirming the judgment of Winston, Y., at October Term, 1894, of MeoKlenbukg Superior Court.

• Messrs Clarkson <& Puls and J. W. Keerans, for petitioner.

Messrs. Burwell. Walker da Cansler and George E. Wil son, contra.

Clark, J.:

Th s is a petition to rehear the former decision of this Court as to the receivership in this case. The custody of a receiver is the custody of the law, and the judge had power to instruct the receiver as to the exercise of his duties. He was under the supervision and control of the court. The property in his hands being a church, it was eminently proper that it should not be rented out for any other purpose, nor to any other denomination. Also, in renting it out, it was within the discretion of the court to direct it to be ren ted, if possible, in accordance with the wishes of the larger part of the congregation. • His Honor might inform himself to his own satisfaction, as to that particular, by personal inquiry or by affidavits, or by taking the sense of the congregation by ballot, or in any other mode he might think proper. The result of the inquiry thus made, or however made, was not binding on the court, which might disregard the report made to it by the receiver as to the wishes of the congregation, and direct a renting to an}r other person. In fact, on the report made as to the preferences of the congregation in regard to a renter, as thus ascertained, the court heard exceptions and numerous affidavits, and finally made its decision, and directed the receiver to whom to rent. Such supervision and instruction of the receiver as to the renting of the property in his hands necessarily rest in the sound discretion of the judge, and there is nothing to show that it was abused on this occasion. The receiver was directed to require a reasonable rent and security for its payment. While the contestants had different preferences as to a renter, the choice of renter could in no wise affect or prejudice the legal rights of either party. The possession of the renter would be the possession of the receiver, i. e. the possession of the court. Before the litigation began, the parties, describing tliemselv.es as “ Trustees of the African Methodist Episcopal Zion Church,” by agreement, placed the church in the possession of the sheriff, Z. T. Smith, and the judge, after litigation begun, very considerately and properly appointed the same person the receiver. The former judgment of this Court is affirmed, and the petition to rehear is dismissed.

Petition Dismissed.