In the companion case of Clemmie Bell et al. v. A. C. Goodwin Co. et als., 126 So. 108,1 on appeal from the decree appointing the receiver we have decided the receiver was properly appointed.
On rehearing reliance is had on Herstein v. Walker, 85 Ala. 37,4 So. 262, as authority that in a suit in equity to reach property fraudulently conveyed by a decedent, it must appear the claim of the creditor was duly presented to the personal representative of the decedent. In that case it does not appear the personal representative of decedent was a party to the suit; hence, it was not a suit against the estate.
In the later case of Freeman v. Pullen, 119 Ala. 235,24 So. 57, wherein the administrator of deceased debtor was a party, the same rule is applied to suits in equity of this character as in suits at law. In principle there can be no distinction.
Probably our decision would have been a bit clearer if, instead of speaking of the policies of insurance as the res, we had noted that the subject-matter of the receivership consists in choses in action, debts due from the several insurance companies of which the policies are the evidences.
Petitioner misconceives the import of "claiming adversely" as applied to the case.
A receiver represents the title held by any party and all parties to the suit as set forth in the bill. This is obvious from the nature and purpose of a receivership. Cases speaking of his title as the same as respondent's refer to cases wherein the bill calls for a receiver of respondent's property, as in case of an insolvent corporation.
The receiver, therefore, is entitled to possession against any person who does not claim title or interest which entitles him to possession as against all the parties to the suit. In other words, taking the averments of the bill as true, and taking the claim of the party in possession as bona fide, does the claim he asserts entitle him to retain possession as against the receiver?
Here Judge Wilkinson admittedly holds the possession of these evidences of debt as attorney for one or more of the claimants of an interest therein. All those entitled to share in the fund are before the court. His claim is against the share of his client when ascertained. It can be ascertained only in the receivership case. Until then there is no need for him to present his claim; hence we repeat the receiver is entitled to possession of these policies, taking all petitioner claims as true.
We would regard it a bad policy, a source of much embarrassment to members of the bar and the courts, if attorneys who happen to have a lien on their client's papers must be made parties to every litigation of this character. The well-established practice is for the rights of litigants to be adjudicated on their merits, and then the courts see to it that attorneys are taken care of upon bringing same to the attention of the court on petition of parties already before the court, or by special intervention of the attorney, if need be.
Ex parte Wadsworth, 217 Ala. 567, 117 So. 178, is so obviously not in point as to call for no comment.
SAYRE, J., concurs in the foregoing dissenting opinion.
1 Post, p. 537. *Page 537