Opinion
3 Div. 700.
April 16, 1925.
Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.
Lee Graves, of Montgomery, for appellant.
The rights and liabilities of a purchaser at judicial sale, on confirmation relate back to the date of sale. Haralson v. George's Ex'r, 56 Ala. 295; Thomas v. Caldwell, 136 Ala. 518, 34 So. 949; Patten v. Swope, 204 Ala. 169, 85 So. 513; T. C. I. Co. v. Gardner, 131 Ala. 599, 32 So. 622; 16 R. C. L. 132; 35 C. J. § 135; 3 Ky. Law Rep. 386; 76 N.J. Eq. 406, 74 A. 987, 139 A.S.R. 770.
Steiner, Crum Weil, of Montgomery, for appellee.
Defendant is not liable for the injury in this case. 1 Tardy's Smith on Receivers (2d Ed.) 1121; 34 Cyc. 236, 293; Archambeau v. N.Y. N.E. R. Co., 170 Mass. 272, 49 N.E. 435; Tobin v. Cent. Vt., 185 Mass. 337, 70 N.E. 431; Memphis, etc., Co. v. Hoechner, 67 F. 456, 14 C.C.A. 469; Davis v. Duncan (C. C.) 19 F. 477: C. O. v. McCammon, 61 F. 772, 10 C.C.A. 50.
The complaint in this case states no cause of action against this defendant.
It is true that the defendant company purchased the street car property at the receiver's sale thereof on February 5, 1923, and the collision complained of occurred on February 10th, following; and hence, upon the confirmation of the sale on February 21st, thereafter, the title to the property was, so far as the question of title was concerned, vested in the purchaser from the date of the sale. As said in Haralson v. George's Executor, 56 Ala. 295, 297:
"These sales are not complete — are in fieri — until confirmation; * * * though the confirmation, when made, relates back to the day of sale, and the purchaser's rights then attach."
Thomas v. Caldwell, 136 Ala. 518, 34 So. 949; Patten v. Swope, 204 Ala. 169, 171, 85 So. 513.
But having the mere naked title to property does not impose liability for its wrongful or injurious use by another who has it in his possession and under his exclusive control.
Here the defendant had neither possession nor right of possession for any purpose at the time of the alleged negligent collision. On the contrary, the possession, the use, and the beneficial enjoyment remained in the receiver, an officer of the court, and he was operating the car lines under the order of the court for the benefit of the creditors, or of the previous owner. It has been held that the owner who has been dispossessed by a receiver is not liable for the wrongful conduct of the receiver or his servants in the use or operation of the property. A. B. A. Ry. Co. v. McGill, 194 Ala. 186, 69 So. 874; Steel v. Booker, 205 Ala. 210, 87 So. 203; 34 Cyc. 236, E. The same rule is applicable, a fortiori, to a mere purchaser from the receiver. 1 Tardy's Smith on Receivers (2d Ed.) § 410; Tobin v. Cent. Vermont R. R. Co., 185 Mass. 337, 70 N.E. 431; Archambeau v. N.Y., etc., R. R. Co., 170 Mass. 272, 49 N.E. 435.
It is of course true that the purchaser at such a sale might, by contractual assumption, become liable for the wrongful conduct of the receiver or his servants during the period of the receiver's possession and control of the property, and growing out of its use and operation.
"As a general rule, the purchaser of a railroad at a sale made under an order of the court holding the custody of the property by a receiver takes the property free from claims against the receiver arising out of the operation of the road, but the court ordering the sale may impose upon the purchaser liability for such debts, as a part of the consideration of his purchase." 23 R. C. L. 100, § 111, citing Houston, etc., R. R. Co. v. Crawford, 88 Tex. 277, 31 S.W. 176, 28 L.R.A. 761, 53 Am. St. Rep. 752.
But the order of the court, and the terms of the sale, as here exhibited, expressly exclude any such assumption of liability by this defendant.
The complaint therefore shows upon its face that the defendant company is not liable for the alleged injury suffered by the plaintiff, and the demurrer to the complaint, pointing out that vice, was properly sustained.
The judgment must accordingly be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.