ON PETITION FOR REHEARING The appellee's petition for rehearing asserts the court erred in interpreting the effect of Clause 7 of § 3-2601, Burns' 1946 Replacement, as to a tort claimant being entitled to the 6. appointment of a receiver, and her briefs allege *Page 390 that the opinion in this appeal is in conflict withRatcliff v. Ratcliff (1942), 219 Ind. 429, 39 N.E.2d 435;West v. Reeves (1934), 207 Ind. 404, 190 N.E. 431,193 N.E. 375; Sallee v. Soules (1907), 168 Ind. 624, 81 N.E. 587. Of course the language in the opinion on this appeal must be construed in connection with the facts decided. Bryson v.Crown Oil Co. (1916), 185 Ind. 156, 112 N.E. 1; Royal Ins.Co. v. Stewart (1921), 190 Ind. 444, 129 N.E. 853.
In Ratcliff v. Ratcliff, supra, the action was to cancel and annul deeds for certain real estate, and for an accounting of the rents and profits. Two of the reasons for the cancellation were that the deeds were obtained by fraud and undue influence. It is to be noted that the action was in equity for the recovery of certain specific property in which the proponent alleged a present existing equitable interest. But neither the first nor second paragraph of the appellee Betty Wallace's complaint alleged any present existing or probable interest in any particular or specific property, either real or personal.
In West v. Reeves, supra, the action was brought by a creditor against a partnership which was alleged to be insolvent. In this case the appellee, Betty Wallace, was not a creditor and she did not allege or prove that the appellant corporation was insolvent, or in imminent danger of insolvency. The proof did show the corporation was solvent and discounting bills.
In Sallee v. Soules, supra, the action was to rescind the endorsements and delivery, and recover the possession of certain specific notes alleged to have been obtained from the decedent by the fraud of an insolvent holder, who was threatening to collect the notes and convert the proceeds to her own use. This alleged *Page 391 a present existing interest in certain specific personal property which is not the case in the present appeal.
The second paragraph of appellee's complaint for rescission of the contract did not seek the return of any specific money or funds, or to establish a constructive trust upon any particular money, property or funds, or show that she had any lien or probable existing interest in any particular property of the appellant corporation, nor did it charge that the corporation was insolvent or in imminent danger of insolvency so that a receiver would be necessary to protect the equitable rights of the appellee.
The first paragraph merely asserted an unliquidated claim for damages by reason of an alleged fraud. There is no allegation that the appellee was a creditor, stockholder, a lienholder 7. or had any present existing property right or interest or any probable right or interest in any of the property, funds or assets of the appellant corporation. The appellee has not cited any authority, nor are we advised of any authority, which justifies the appointment of a receiver under the general equity powers of the trial court under Clause 7 of § 3-2601, Burns' 1946 Replacement, where the proponent's only interest is an alleged unliquidated claim for damages for fraud.
The petition for rehearing is overruled.
NOTE. — Reported in 81 N.E.2d 534. *Page 392