I concur in reversal.
Neither by motion nor answer has defendant appellant challenged the jurisdiction of the court to decree partition. He stipulated that a receiver be appointed. The court ordered the receiver to discharge the lease upon the payment of $15,000 in settlement. This appeal is from the latter order only. I express no opinion upon the jurisdiction of the court to decree partition.
Partition proceedings are statutory and not within the general or ordinary jurisdiction of courts of chancery.Francis v. Ford Motor Co., 243 Mich. 117; Eckhardt v. Dompier,250 Mich. 91. The action of partition is to divide the property, not to liquidate it. The obligation to conserve thecorpus of the estate is not upon the court but upon the parties. The stipulation did not empower the court to direct the receiver to discharge the lease. The statute, 3 Comp. Laws 1929, § 15078, authorizing the appointment of a receiver, does not vest him with title to the property. Weeks v. Weeks,106 N.Y. 626 (13 N.E. 96); Rinehart v. Hasco BuildingCo., 153 App. Div. 153 (138 N.Y. Supp. 258). The authority of the receiver to conserve the property goes only to the extent of rents and profits from use. If a party is entitled to have the property carved pendente lite or part of the capital corpus disposed of for his protection he must seek relief in an appropriate proceeding and upon some other ground of equity jurisdiction than partition.
WIEST, BUTZEL, and BUSHNELL, JJ., concurred with FEAD, J. *Page 644