ANNOTATION. One taking bill or note as a gift or in consideration of love and affection as a holder for value or in due course protected against defenses between prior parties. [Bills and Notes, § 201.] The rule is universal that, in order to constitute the holder of a negotiable instrument a holder in due course, he, or someone through whom he traces his title, must have parted with value therefor. 3 R. C. L. 1050. There is but little specific authority upon the question of whether one taking a bill or note as a gift, or in consideration of love and affection, is a holder for value or in due course, protected against defenses between prior parties. In the reported case (COCKRELL V. MCKENNA, ante, 234), where the payee of a note gave it to the lady to whom he was engaged, it was held that she was not a bona fide holder for value, and consequently did not hold the note free from equities between the original parties. In Greer v. Orchard (1913) 175 Mo. App. 494, 161 S. W. 875, where the purchaser of a note gave it to his wife, it was held that she was not a bona fide holder for value within the meaning of the Negotiable Instruments Law, and was in no better position than the purchaser, with full knowledge of all the conditions affecting the note, would have been if it had been transferred to him. In Holladay v. Rich (1913) 93 Neb. 491, 140 N. W. 794, where a promissory note was donated to a college, it was held in a syllabus by the court that one who takes a promissory note as a gift, without paying any consideration therefor, takes only the right of the donor therein. (This was on rehearing, and affirmed the former decision in (1912) 92 Neb. 91, 137 N. W. 988.) It is to be noted that, as these cases imply, the denial to the donee of the character of a bona fide holder in the sense of the law merchant or the Negotiable Instruments Law simply places him in the same position as the donor as regards defenses between prior parties, and if the donor was himself a bona fide holder entitled to protection against such defenses, the donee undoubtedly succeeds to his right, since, as stated in 3 R. C. L. 1036, "whenever negotiable paper has passed into the hands of a party unaffected by previous infirmities, its character as an available security is established, and its holder can transfer it to others with like immunity." J. M. H. CLEAR CREEK POWER & DEVELOPMENT COMPANY et al., Plffs. in Err., V. CHARLES D. CUTLER. Colorado Supreme Court (Dept. 3) — April 19, 1926. (79 Colo. 355, 245 Pac. 939.) Contempt, § 16 — interference with property in possession of court execution. 1. One cannot justify interference with property in possession of a receiver in a proceeding to foreclose a trust deed, because the authority of the trustee had terminated and no executor had been appointed, while the beneficiary was without authority to institute the foreclosure suit, or because the property interfered with was not included in the trust deed. [See annotation on this question beginning on page 241.] ERROR to the District Court for the City and County of Denver (Butler, J.) to review a judgment in favor of plaintiff in contempt proceedings for unlawful interference by defendants with possession of properties levied on under execution. Affirmed. The facts are stated in the opinion of the court. & McGlashan for plaintiffs in error. The mining and mill machinery, as well as the buildings, had taken on the character of real estate, and was properly included within the mortgage, and consequently rightfully in the possession of the receiver. Cary Hardware Co. v. McCarty, 10 Colo. App. 200, 50 Pac. 744; Fisk v. People's Nat. Bank, 14 Colo. App. 21, 59 Pac. 63; Puzzle Min. & Reduction Co. v. Morse Bros. Machinery & Supply Co. 24 Colo. App. 74, 131 Pac. 791; Roseville Alta Min. Co. v. Iowa Gulch Min. Co. 15 Colo. 29, 22 Am. St. Rep. 373, 24 Pac. 920, 16 Mor. Min. Rep. 93; Mosca Town Co. v. Wellington, 39 Colo. 326, 121 Am. St. Rep. 175, 89 Pac. 783; Mollie Gibson Consol. Min. & Mill. Co. v. McNichols, 51 Colo. 54, 116 Pac. 1041; Horn v. Clark Hardware Co. 54 Colo. 522, 45 L.R.A. (N.S.) 100, 131 Pac. 405; Booth v. Central Sav. Bank, 58 Colo. 519, 146 Pac. 240; International Trust Co. v. Palisade Light, Heat & P. Co. 60 Colo. 397, 153 Pac. 1002; Hopewell Mills v. Taunton Sav. Bank, 150 Mass. 519, 6 L.R.A. 249, 15 Am. St. Rep. 235, 23 N. E. 327; Feder v. Van Winkle, 53 N. J. Eq. 370, 51 Am. St. Rep. 628, 33 Atl. 399; 27 Cyc. 1721, c. The sufficiency of the application and necessity for the appointment of a receiver were questions for the decision of the court. The decision, if erroneous, was not void, and cannot be questioned collaterally. Powell v. National Bank, 19 Colo. App. 57, 74 Pac. 536; Camplin v. Jackson, 34 Colo. 447, 83 Pac.: 1017; 17 Am. & Eng. Enc. Law, 1041; People ex rel. Lindsley v. District Ct. 30 Colo. 488, 71 Pac. 388; Mortgage Trust Co. v. Redd, 38 Colo. 458, 8 L.R.A. (N.S.) 1215, 120 Am. St. Rep. 132, 88 Pac. 473; Medina v. Medina, 22 Colo. 146, 43 Pac. 1001; Brown v. Tucker, 7 Colo. 30, 1 Pac. 221; Woods v. Capitol Hill State Bank, 70 Colo. 221, 199 Pac. 964; Chicago, D. & V. R. Co. v. Fosdick, 106 U. S. 67, 27 L. ed. 54, 1 Sup. Ct. Rep. 10; Dillon v. Myers, 58 Colo. 492, 146 Pac. 268, Ann. Cas. 1916C, 1032. At all events the appointment of the receiver and the other matters com (79 Colo. 355, 245 Pac. 939.) plained of here were erroneous only, and not jurisdictional, and cannot be availed of by plaintiffs in error. High, Receivers, 4th ed. p. 171, § 143. Abatement of the action, or the entry of final judgment therein, does not have the effect of discharging the receiver ipso facto. Alderson, Receivers, p. 888, § 652; High, Receivers, p. 985, §§ 833, 834; Pagett v. Brooks, 140 Ala. 257, 37 So. 263; Fountain v. Mills, 111 Ga. 122, 36 S. E. 428; Robinson v. Ruprecht, 147 Ill. App. 646; 27 Cyc. 1633; Prussing v. Lancaster, 234 Ill. 462, 84 N. E. 1062; Continental & Commercial Trust & Sav. Bank v. Leven, 213 Ill. App. 312; Wright v. Matters, 220 Ill. App. 131. session of the property through a custodian. The Clear Creek Power & Development Company, after the sale under the foreclosure deed was made, and while possession of the mine and machinery and the entire plant was in the receiver through his custodian, brought an action against the owner of the mining property, caused an execution thereunder to be issued and delivered to the sheriff of the county where the property in question was situate, with instructions to make a levy upon certain of the movable property thereon consisting of various items of machinery, tools, etc., and the sheriff made a levy thereon by posting appropriate notices over earlier Campbell, J., delivered the opin- notices which were placed upon the ion of the court: This is a writ of error to review a contempt judgment. To give a complete history of the case would unnecessarily incumber our reports. A general statement merely wil suffice for our present purpose. Charles D. Cutler filed a complaint having for its object a decree of foreclosure of a trust deed given by the Empire Consolidated Mines, Inc., formerly known as the Randolph Gold Mining, Milling & Tunnel Company, to secure its bond issue. On filing his complaint, plaintiff asked for, and obtained, the appointment by the court of a receiver of the property which consisted of idle mining property and the machinery and equipment of a working mine, the object being through the receiver to preserve the property, and to prevent injury to the mine and the possible larceny of movable property situate thereon, all of which, as it is said, were included in the trust deed. On final hearing a decree of foreclosure was rendered, and under a special execution the property was sold by the sheriff and bid in by the plaintiff, Cutler, who is the owner and holder of the entire bond issue. No further order was made as to the receivership, the order of appointment not having been revoked or set aside, and the receiver has continuously remained, and still is, in pos property by the same sheriff in making his levy on Cutler's execution. Thereupon an affidavit by the attorney of Cutler, the judgment creditor in the foreclosure suit, was filed in that case, setting forth the alleged illegal acts of the sheriff and the subsequent judgment creditor, the Clear Creek Power & Development Company, in thus unlawfully interfering with the possession of certain of the properties levied upon under the Cutler execution, which were at the time in the custody of the court through its receiver, and asking a rule against the respondents to show cause why they should not be punished for contempt. In response to that rule the respondents sheriff and the subsequent judgment creditor filed their answer to the citation, and upon the hearing the court adjudged them both to be guilty of contempt in interfering with property in the custody of the court, and fined each of them $1, with the usual directions as to imprisonment of the sheriff for failure to pay. The respondents are here with their writ. It is a recognized rule in this state that, in reviewing contempt judgments, this court Appeal-conwill inquire only if tempt-extent of the court below had review. jurisdiction of the offense and of the ther, and in no event will it pass upon the sufficiency of the evidence, to justify the sentence imposed. The plaintiffs in error here seek to justify their conduct in taking possession of property in custodia legis by attempting to show many irregularities in the foreclosure suit. Among other things, they say that the trustee in the trust deed that was foreclosed never had any authority to act as such in the state of Colorado, and had ceased to exist; that the bonds secured by the trust deed provided, in case the trustee was incapable of acting, or refused to act, the bond owners, or a majority of them, had power to select a successor in trust; that Cutler, although, as alleged in his complaint in his foreclosure suit, he was the owner and holder of all of the bonds secured by the trust deed, had no power to bring or maintain the foreclosure suit; that this property upon which they caused the levy to be made, although in the hands of the court through its receiver, was not included in the trust deed, and some of it was acquired long after the trust deed was given, though the trust deed provided that the movable property at the mine at the time of its execution, and used in and about the development of the property, and all such as thereafter was acquired, such as machinery, tools, etc., and so used, should be inIcluded in the trust deed. It is unnecessary further to set forth the matters relied upon by the respondents, and our only purpose in the foregoing enumeration is to show the nature of the justification relied upon by respondents as constituting a purging of the contempt charged. It is too clear for argument that its custody, they should first have asked its permission. They did not ask permission. Apparently they think they were justified in their conduct because of the alleged irregularities and invalidity of the proceedings in the foreclosure suit, and of the decree rendered therein, and because some of the property they levied upon and asked the sheriff to sell is not included in the trust deed. The trial court found that the property which they levied upon was within the purview of the trust deed, and that the respondents had never asked permission of the court to make the levy or to interfere with the property in the custody and possession of its receiver. The court properly refused to listen to any of the objections interposed as to the irregularities in the foreclosure proceedings and the alleged invalidity of the decree. It is too clear for argument that the trial court had jurisdiction of the alleged contempt and of the respondents who appeared court. in answer to the jurisdiction of rule to show cause, and that its judgment cannot be interfered with by this court. The rule is so familiar as not to need citation of authority that one who interferes with property in the custody of the law without permission of the court in whose custody it is, guilty of contempt. The alleged invalidity of with property in custody of -interference court. the foreclosure decree and the improper appointment of a receiver, and the claim that the receiver's tenure was terminated by the sale under the execution, cannot be considered in a contempt proceeding. Even if it be conceded that there were irregularities or improprieties in interference with property the foreclosure ac- in custody of tion, even of a grave irregularity. character, which we do not say there were, which might justify a reversal at the request of the defendants in the action, this would afford no justification to the respondents in interfering with this court-effect of (79 Colo. 355, 245 Pac. 939.) property. Of many authorities sustaining our views are the following: Civil Code, 1921, §§ 180, 181, p. 138; Powell v. National Bank, 19 Colo. App. 57, 68, 74 Pac. 536; Camplin v. Jackson, 34 Colo. 447, 451, 83 Pac. 1017; Mortgage Trust Co. v. Redd, 38 Colo. 458, 8 L.R.A. (N.S.) 1215, 120 Am. St. Rep. 132, 88 Pac. 473; Medina v. Medina, 22 Colo. 146, 43 Pac. 1001; Brown v. Tucker, 7 Colo. 30, 34, 1 Pac. 221; Woods v. Capitol Hill State Bank, 70 Colo. 221, 222, 199 Pac. 964; Chicago & V. R. Co. v. Fosdick, 106 U. S. 47, 27 L. ed. 47, 1 Sup. Ct. Rep. 10; Dillon v. Myers, 58 Colo. 492, 146 Pac. 268, Ann. Cas. 1916C, 1032; High, Receivers, 4th ed. §§ 143, 165, 166, 172, 833, 834, pp. 178, 195, 197, 294, 985, 986; Alderson, Receivers, § 652, p. 888; Pagett v. Brooks, 140 Ala. 257, 37 So. 263; Fountain v. Mills, 111 Ga. 122, 36 S. E. 428; Robinson v. Ruprecht, 147 Ill. App. 646; 27 Cyc. pp. 1633, 1707; Prussing v. Lancaster, 234 Ill. 462, 84 N. E. 1062; Continental & C. Trust & Sav. Bank v. Leven, 213 Ill. App. 310, 312; Wright v. Matters, 220 Ill. App. 131; Wells v. Lenox, 108 Ark. 366, 159 S. W. 1099, Ann. Cas. 1914D, 11; Beach, Receivers, pp. 165, 177, 186, §§ 213, 227, 237. We cannot set aside this judgment, rendered as it was by the court in a proceeding of which it had full jurisdiction. Application for supersedeas denied; judgment affirmed. Allen, Ch. J., and Sheafor, J., con cur. ANNOTATION. Conduct pending receivership as contempt of court. This annotation is supplementary to the one in 39 A.L.R. 6. In line with the rule announced in the earlier annotation, which is cited in the opinion, it was held in Re Dawley (1926) - Vt. —, 131 Atl. 847, that the institution, without leave of the state court appointing him in a suit in a Federal court against a receiver to recover damages for the overflowing of lands by a dam constructed on the contiguous receivership property, and praying for a permanent injunction, constituted a contempt of the court appointing the receiver. It is to be noted, however, that permission of the appointing court is not always necessary in order to bring suit against a receiver, for, as stated in the instant case: "The rule that leave to sue a receiver must be obtained of the appointing court has its limitations. Doubtless, if a receiver does something outside of his duties as such, or takes possession of property which the court has not authorized him to do, he cannot claim protection against a suit on account of such misconduct. The object of the rule is to give the court full control of the property of 48 A.L.R.-16. which it has taken possession through its officer, and not to protect the receiver when acting outside the orders of the court and interfering with the property rights of individuals. Being an officer of the court, a receiver does not incur personal liability for acts done under and in conformity to the order of the court. For such acts he is only liable in his official capacity, and actions against him as receiver are actions against the receivership or the funds in his hands. Texas & P. R. Co. v. Cox (1892) 145 U. S. 593, 36 L. ed. 829, 12 Sup. Ct. Rep. 905; McNulta v. Lochridge (1891) 141 U. S. 327, 35 L. ed. 796, 12 Sup. Ct. Rep. 11; 34 Cyc. 408. It is the undoubted rule that a person acting as a receiver can be sued only by leave of the court appointing him, for acts as to which he is not liable personally. On the other hand, if a receiver wrongfully assumes to take and hold property not embraced in the order of appointment, or forcibly to take property from a stranger, he is not then acting as the officer of the court, but is a mere trespasser, and the rightful owner of the property may sue him for damages, or |