Fish v. Potts

I see no way in which I. could decree that these rents be paid to Wm. Potts, trustee &e., but by declaring the Receivers’ sale void; or that it was made subject to incumbrances, and that the purchasers at the Receivers’ sale took it subject to all incumbrances, and subject, too, to the pledge, if it be such, of the rents receivable from Fish and Green, to pay the interest of the debts named in what is called the assignment to Potts, trustee &c., of the lease to Fish and Green.

But the Receivers’ sale was made free and clear of all incumbrances, and was confirmed by the Court. It cannot now be disturbed by any action of this Court. An appeal should have been taken from that decree of confirmation, as the only mode of correcting it if it was wrong. I cannot now declare that that sale was made subject to incumbrances.

*293From some facts stated in argument it would seem that, when the act for the sale free from incumbrances was applied for, it was understood by the parties who applied for it that Potts, trustee &c., should not he affected in his right to receive the rents from Fish and Green for the purposes stated in what is called the assignment to him of the lease to Fish and Green ; and I can very well imagine that the language used in the proviso of the act was understood by the parties applying for the act, or by those interested in the rents derivable from that lease, to be sufficient to protect Potts, trustee &c., in the receipt of those rents. But I do not see that the Court is at liberty to inquire what any person soliciting the passage of an act, or assenting to its passage, understood to be the meaning of its language. And, again, such understanding -would not affect the purchaser at the Boceivors’ sale, or prior or subsequent mortgages of the property.

The words “ assignment thereof,” in the clause, in the act of February, 1844, providing that nothing therein contained should be construed to invalidate any existing leases or assignment thereof, moan, assignment by the lessee or lessees, and not, assignment by the lessor.

My conclusion on the re-hearing is the same as on the first hearing — that the Water Power Company are entitled to the rents.

Order accordingly.