16 Iowa 385 | Iowa | 1864
Tbe order appointing a receiver, under tbe circumstances stated, was made without notice to the defendant. Nevertheless, with or without notice, the motion to vacate the same should have prevailed.
First, because after final judgment of foreclosure, the appointment of a receiver to take charge of the mortgage premises is, to say the least, as unusual as it is believed to be without precedent; and if allowable, the application should be supported by a strong showing, which we think was not done in this case, yet whatever weight or consideration it was entitled to, it was overcome by the superior showing of the defendant, who, by three disinterested and experienced millers, proved that the property was not going to waste or needed repairs, but on the other hand was comparatively in a good state of preservation. This, coupled with the fact that the plaintiffs had approved security for their whole debt on their appeal bond, should have led at once to a vacation of the appointment
But there is still another reason why the motion to vacate should have prevailed, in the judgment of the writer of this opinion. The order appointing a receiver, under the circumstances, violates the spirit and intendment of an act of the Legislature, approved April 7th, 1862, passed for the relief of volunteers, and exempting their property from sale, or levy under or by virtue of any deed of trust or mortgage of any description whatever, or under or by virtue of any execution or order of sale issued on or by virtue of any judgment or decree rendered or hereafter to be rendered by any of the courts of this State. Now the plaintiffs had their judgment, why did they not, instead of having a receiver appointed, sue out their execution and sell the mortgage property ? Simply because the defendant, being in the actual military service of the country, they were not permitted to do so under the above enact
In this case the receiver was directed to take the custody of the property, and all the rents and profits thereof from the possession of the defendant to make repairs, pay taxes, &c., such an interference with the property of the defendant affects his rights no less injuriously than a sale under execution, and is manifestly an infraction of the spirit and object of this relief statute, and as such, should not be permitted. The action of the Court, therefore, will be reversed, and a final order made in this Court, discharging the receiver, and directing him to restore the property, rents and profits to the defendant.
Reversed.
