In the final findings, which are unquestioned on this appeal, the court found that when the plaintiff was appointed receiver of Mulick's assets, he was the owner of the property in question; that title passed to the receiver who became entitled to possession thereof; and that the defendant unlawfully took and detained the property. No counterclaim or other pleading was filed by defendant for affirmative relief and there is no basis therefor in the court's findings upon which the court concluded that the receiver was entitled to judgment for the return of the property. In sustaining the receiver's contentions, the court said, —
"The effect of the appointment of a receiver is to put the property from that time into his custody as an officer of the court. . . . The defendant Holtz took possession of these airplanes after the appointment of the receiver. Consequently the defendant took possession of these airplanes out of the hands of the court. He had no right to do this even as mortgagee."
These conclusions were warranted under the principles applicable to the undisputed facts that the property in question *Page 413 was in the lawful possession of Mulick on March 6, 1939, when the appointment of plaintiff as receiver of Mulick's property became effective; and that the defendant, Holtz, took possession thereof on March 21, 1939, without the permission of the court which appointed the receiver. Under these circumstances the title and right to possession of the property became vested in the receiver on March 6, 1939. Hagedon v.Bank of Wisconsin, 1 Pin. (Wis.) 61; Barker v. Dayton,28 Wis. 367, 382; United States Rubber Products, Inc., v. TwinHighway Tire Co. 233 Wis. 234, 244, 288 N.W. 179;Texas Trunk R. Co. v. Lewis, 81 Tex. 1, 16 S.W. 647;Sercomb v. Catlin, 128 Ill. 556, 71 Am. St. Rep. 366; Gilkeyv. Koch, 201 N.Y. Supp., 703; American Bank Trust Co. v.Feeney Tool Co. 106 Conn. 159, 137 A. 756; 53 C.J. pp. 93, 94, § 117; 23 R.C.L. p. 61, § 68; p. 54, § 58. As the possession of the receiver was the possession of the court, the property was in custodia legis and Holtz could not lawfully take possession thereof to enforce his claim as mortgagee without first obtaining the consent of the court which appointed the receiver. Milwaukee St. P. R. R. Co. v. Milwaukee Minn. R. R. Co. 20 Wis. *165, *171, *172;Mechanics' Nat. Bank v. Landauer, 68 Wis. 44, 47,31 N.W. 160; Kneisel v. Ursus Motor Co. 316 Ill. 336, 147 N.E. 243, 39 A.L.R. 1; 23 R.C.L. p. 55, § 59; 53 C.J. p. 111, § 134; p. 331, § 545. Upon Holtz's wrongfully taking possession while the property was in custodia legis, the receiver became entitled to maintain replevin to regain possession thereof (Saxton v. Williams, 15 Wis. *292; Cagill v. Wooldridge, 8 Baxt. (Tenn.) 580, 35 Am. Rep. 716; Chicago, M. St. P.R. Co. v. Keokuk N. L. Packet Co. 108 Ill. 317, 48 Am.Rep. 557; Merchants' Nat. Bank v. McLeod, 38 Ohio St. 174;Robertson v. Stead, 135 Mo. 135, 36 S.W. 610, 33 L.R.A. 203; 23 R.C.L. p. 873, § 24); and consequently I cannot concur in the conclusion that the court erred in ordering judgment for plaintiff. *Page 414