Where a receiver's bond provided that he should perform the trust imposed and make due report of his trust to the court as ordered and make true account of all moneys and properties which should come into his hands, there was a breach of the bond when he failed to pay over money in his hands as directed by the court for which the receiver and his surety were liable."

In an action on a receiver's bond, the finding and judgment of the court as to payment and distribution of the fund in the action in which the receiver was appointed is competent evidence to show the receiver's default and breach of the bond."

§ 1891. Objections-Waiver-Collateral attack

Where the plaintiff has filed a petition in a court of competent jurisdiction against certain defendants asking to have a receiver appointed, and such receiver is appointed without objection, and a sale is made by said receiver or by some agent appointed by the court for him, and at such sale the plaintiff is a bidder and the property is sold to him under his bid, such plaintiff is presumed to take notice of all proceedings and orders taken or made in the case, and is estopped from questioning, in a collateral proceeding, the appointment of the receiver or the agent to sell said real estate.*

One who, with full knowledge of all the steps taken in placing a bank in liquidation, receives and retains a dividend paid by the officers in control of the liquidating bank, cannot deny the validity of the liquidation.75

Stockholders who recognize a corporation's receiver by intervening and asking that he be directed to sell part, instead of all, of the assets are estopped to contend that his appointment was unauthorized.76

An order appointing a receiver to take custody of property involved in litigation, which was unwarranted and erroneous, but not absolutely void, is not open to collateral attack. On the other hand, the orders of a court purporting to vest a receiver with the author

72 Northrup Nat. Bank v. Varner, 109 P. 394, 82 Kan. 691. 73 Northrup Nat. Bank v. Varner, 109 P. 394, 82 Kan. 691.

74 Threadgill v. Colcord, 85 P. 703, 16 Okl. 447.

75 Watkins v. National Bank of Lawrence, 32 P. 914, 51 Kan. 254. 76 Kreitzer v. Monarch Portland Cement Co., 141 P. 1004, 92 Kan. 835.

ity and control of property and funds not involved in the litigation in which the receiver was appointed, are absolutely void, and can be collaterally attacked at any time, by any one, in any proceeding where their validity is in issue."

§ 1892. Contempt-Interference with receiver

"Whenever, in the exercise of its authority, a court shall have ordered the deposit or delivery of money or other thing, and the order is disobeyed, the court, besides punishing the disobedience as for contempt, may make an order requiring the sheriff to take the money, or thing, and deposit or deliver it, in conformity with the direction of the court." 78

A seizure of, or unauthorized interference with, assets in the custody of a receiver, cannot be justified on the ground that his appointment is irregular or invalid. Questions of invalidity or irregularity in his appointment should be presented to the court appointing the receiver.79

§ 1893. Vacation of order-Supreme Court-Form

"In all cases in the Supreme Court, in which a receiver has been. appointed, or refused, by any justice of the Supreme Court, the party aggrieved may, within ten days thereafter, have the right to file a motion to vacate the order refusing or appointing such receiver, and hearing on such motion may be had before the Supreme Court, if the same be in session, or before a quorum of the justices. of said court in vacation, at such time and place as the said court or the justices thereof may determine, and pending the final determination of the cause, if the order was one of the appointment of a receiver, the moving party shall have the right to give bond with good and sufficient sureties, and in such amount as may be fixed. by order of the court or a justice thereof, conditioned for the due prosecution of such cause, and the payment of all costs and damages that may accrue to the state, or any officer or person by reason thereof, and the authority of any such receiver shall be suspended pending a final determination of such cause, and if such receiver

77 Bowman v. Hazen, 77 P. 589, 69 Kan. 682.

The appointment and retention of a receiver cannot be collaterally attacked. Greenawalt v. Wilson, 34 P. 403, 52 Kan. 109.

78 Rev. Laws 1910, § 4985.

79 Missouri Pac. Ry. Co. v. Love, 59 P. 1072, 61 Kan. 433.

shall have taken possession of any property in controversy in said action, the same shall be surrendered to the rightful owner thereof, upon the filing and approval of said bond."

7280

MOTION TO VACATE ORDER APPOINTING RECEIVER

In the Supreme Court of the State of Oklahoma,

(Caption.)

Comes now the said defendant, C. D., and moves this honorable court to vacate the order heretofore made herein on the

day of

19—, appointing E. F. as receiver herein, said or

one of the justices of said court, and for

der being made by
grounds of such motion, says:

1. (Set forth grounds, as, lack of jurisdiction to appoint, no necessity for appointment, etc.)

Defendant further moves the court to fix the amount of bond to be given by this defendant, and that upon the giving and approval of such bond that the authority of such receiver be suspended pending the final determination of this cause, and that all property of which said receiver has taken possession be surrendered to the rightful owner.

X. Y., Attorney for Defendant.

(Verification.)

(Caption.)

BOND

Know all men by these presents, that

in the penal sum of

-, as principal, and and, as sureties, are held and firmly bound unto dollars, for the payment of which sum, well and truly to be made, we do bind ourselves and each of us, our heirs, executors, and administrators, jointly and severally by these presents.

on the

day of

The conditions of the above obligation are such that, whereas, -, 19-, one E. F. was appointed receiver in the above entitled cause by the order of one of the justices of the Supreme Court of the state of Oklahoma; and whereas, on the day of ——, the above named defendant, principal herein, filed in said cause his motion to vacate said order appointing such receiver:

80 Rev. Laws 1910, § 4987.

Now, therefore, if the above named defendant, principal herein, shall duly prosecute said cause to a final determination, and shall pay all costs and damages that may accrue to the state of Oklahoma, or to any officer thereof, or to said - plaintiff, then this obligation to be void; otherwise, to remain in full force and effect.

"The receiver has, under the control of the court, power to bring and defend actions in his own name, as receiver; to take and keep possession of the property, to receive rents, to collect debts, to compound for and compromise the same, to make transfers, and generally to do such acts respecting the property as the courts may authorize."

3381

§ 1895. Title and custody of property

A receiver holds the property coming into his hands by the same right as the person for whose property he is the receiver.82

Courts of equity may appoint receivers to take possession of property in controversy and enjoin interference with the possession of the receiver, whether the property is in the immediate possession of the defendant or his agent, and may order the agent or employés of defendant, though not parties to the record, to deliver the specified property to the receiver.88

The receiver of an insolvent corporation takes its property for the creditors subject to the equities, liens, or incumbrances, whether created by operation of law or by act of the corporation, existing against the property at his appointment.84

81 Rev. Laws 1910, § 4982.

82 Lawson v. Warren, 124 P. 46, 34 Okl. 94, 42 L. R. A. (N. S.) 183, Ann. Cas. 1914C, 139.

83 Severns v. English, 101 P. 750, 19 Okl. 567.

84 Ardmore Nat. Bank v. Briggs Machinery & Supply Co., 94 P. 533, 20

After property passes into the exclusive jurisdiction and control of the court, no liens against it can be obtained, nor preferences acquired by any action that claimants may take; and it is not subject to execution or interference without the permission of the court appointing the receiver.85

The receiver's title and right to possession of the property of an insolvent nongoing corporation vest from the original order for the appointment, and are superior to those of a judgment creditor who levies on the property after the order of appointment, but before the perfecting thereof.8"

Okl. 427, 23 L. R. A. (N. S.) 1074, 129 Am. St. Rep. 747, 16 Ann. Cas. 133: Smith & Furbush Mach. Co. v. Huycke (Okl.) 177 P. 919.

A receiver is merely a ministerial agent of the court, who holds the property or fund intact until the relative rights of claimants thereto can be determined; and, although his possession is exclusive, he takes the property subject to all valid liens existing against it when he is appointed. Cramer v. Iler, 66 P. 617, 63 Kan. 579.

Where a vendor, after the appointment of a receiver to take charge of the property and affairs of an insolvent, nongoing corporation, files its plea of intervention, setting up all the facts in relation to certain reservation of title notes taken by the vendor, for sales of machinery to the insolvent corpora tion, and further alleges that the reservation notes are liens on the property, and prays for their foreclosure, and also prays for general relief, this is not such an election as will preclude the vendor from afterwards amending its plea of intervention, and asserting title and right to possession of the property described in the reservation notes as against one who claims to have a lien thereon subsequent in time to the reservation notes, where such lien, if it attached to the property at all, came into existence after the property fell into the hands of the receiver, notwithstanding the reservation notes were not filed as chattel mortgages. Ardmore Nat, Bank v. Briggs Machinery & Supply Co., 94 P. 533, 20 Okl. 427, 23 L. R. A. (N. S.) 1074, 129 Am. St. Rep. 747, 16 Ann. Cas. 133.

85 Cramer v. Iler, 66 P. 617, 63 Kan. 579.

A lien cannot be obtained on the assets of an insolvent partnership in the hands of a receiver appointed in an action for dissolution of the partnership, superior to the claims of creditors who have intervened in such action, where the assets in the hands of the receiver have been ordered to be preserved for distribution among the creditors by taking judgment and filing a creditor's bill. Foster v. Field, 74 P. 190, 13 Okl. 230.

Property and assets brought within the control of a court of competent jurisdiction by the appointment of a receiver are in custodia legis, and not subject to seizure by attachment or garnishment process by other courts. Missouri Pac. Ry. Co. v. Love, 59 P. 1072, 61 Kan. 433.

86 Ardmore Nat. Bank v. Briggs Machinery & Supply Co., 94 P. 533, 20 Okl. 427, 23 L. R. A. (N. S.) 1074, 129 Am. St. Rep. 747, 16 Ann. Cas. 133.