Binney

The salient facts in this appeal appear to be that George A. Binney was the owner of a citrus grove and that he executed and delivered a mortgage thereon, in- eluding the “rents, issues and profits,” to Edwin 0. Kennard and Flora H. Kennard. The indebtedness secured by the mortgage not having been paid, suit was brought to foreclose the mortgage, and somewhat later a receiver in the action was appointed by the court. Between the time that the suit was commenced and the date of the appointment of the receiver the defendants in that action picked fruit from the mortgaged premises and delivered the fruit to San Dimas Lemon Association (the defendant in this action), which fruit was later sold by said association for the sum of $603.99, and which amount, on demand by the receiver, was paid to him. Thereupon George A. Binney assigned to his son, George A. Binney, Jr., all his interest in the proceeds of the sale of the fruit, and George A. Binney, Jr., commenced the instant action against the San Dimas Lemon Association for the money received by it for the fruit. Judgment was rendered in favor of the defendant, and plaintiff has appealed therefrom to this court. It also appears that…

I dissent. I agree with the decision on the first proposition, which is to the effect that ,the order requiring the receiver to collect from the San Dimas Lemon Association, and ordering that association to pay over to the receiver the money in question, was a void order. I disagree with the second proposition, which runs to the effect that the association having paid the money to the receiver may now use the fact of such payment as a defense against the plaintiff’s demand in the present action. It may be conceded that if the receiver had been actually seizing physical property and thereby taking it from the custody of the association, the latter would have been justified in submitting to such force, or threatened use of force, and in refraining from any attempt to resist such seizure. That appears to be in accordance with the opinion of the supreme court as stated in Havemeyer v. Superior Court, 84 Cal. 327, 397 [ 18 Am. St. Rep. 192 , 10 L. R. A. 627, 24 Pac. 121 ].

But I hesitate to accept an extension of the Havemeyer decision so as to cover an instance of voluntary payment of money, where the money so paid over to the receiver belongs or is owing to a third person, and where…