79 P. 379 | Cal. | 1904
Lead Opinion
Upon a further consideration of this case we adhere to the opinion heretofore rendered in Department One. It is proper to state further that there is an allegation in the complaint that "the mortgaged premises are insufficient to pay and discharge the mortgage debt," and the court finds that this allegation is true. On the authority of Scott v. Hotchkiss,
Such a statement is no more than a conclusion. It is no better than the statement sometimes contained in a complaint for an injunction, that if the acts threatened are committed "the plaintiff will suffer irreparable injury which cannot be compensated in damages." This is always held insufficient to authorize or support an injunction. The same rule should be applied here. The appointment of a receiver involves the taking of the defendant's property from his possession — a measure more violent and drastic than an injunction. It should never be allowed in cases of mortgage foreclosure, except upon a statement of facts showing that the actual value of the mortgaged premises is less than the debt secured, with interest and costs, and that resort to the rents and profits is necessary.
Subdivision 2 of section
It is ordered that the decree be modified by striking out the part thereof relating to the continuance of the receiver in his office after the final decree, and that as so modified the judgment be affirmed.
Henshaw, J., Lorigan, J., Angellotti, J., Van Dyke, J., and McFARLAND, J., concurred.
Dissenting Opinion
I dissent. The allegation of insufficient value in Scott v.Hotchkiss was less precise and less positive than the allegation in this complaint, yet it was held sufficient in form and in substance to warrant the appointment of a receiver. That decision made a precedent which this plaintiff has followed, and it ought to protect him.
The following is the opinion rendered in Department One, October 17, 1903, which is approved by the court in Bank: —
Addendum
This is an appeal by J.J. Stephens, as administrator of the estate of M.R. York, deceased, from a judgment foreclosing a mortgage executed by M.R. York and Susan F. York in their lifetime. The case is presented upon the judgment-roll alone.
1. The mortgage contains a covenant that upon the filing of a complaint to foreclose the same the plaintiff would be entitled to have a receiver appointed to take possession of and lease the premises, collect the rents, and hold the same as security for the debt secured. The complaint in the action avers this covenant, but contains no showing that the property is insufficient to pay the debt. Upon this complaint an application was made to the court for a receiver, which was granted, and a receiver appointed, who took charge of the property accordingly. The decree appealed from provides that the receiver theretofore appointed should continue to act as receiver and receive from the tenant in possession the rents and profits until a sale and redemption, and hold the same as *662
security for the debt. The appellant objects to this portion of the decree upon the ground that the court did not have jurisdiction under the facts of the complaint to appoint a receiver, and, therefore, that it had no power to continue him in office after the making of the final decree. This contention must be sustained. In the cases of Scott v. Hotchkiss,
2. The mortgagors were husband and wife, and the property described in the mortgage was community property. Prior to the execution of the mortgage, the property was duly selected as a homestead by the mortgagors. Upon the death of M.R. York, the husband, an administrator was duly appointed, and thereafter an inventory was returned in the estate, showing that the homestead property was of the value of fifteen thousand dollars. Upon the return of the inventory, proceedings were taken under sections 1476 to 1486, inclusive, of the Code of Civil Procedure, whereby the said homestead premises were admeasured, and a portion thereof, consisting of one hundred acres, was set apart to Susan F. York, as the widow of said M.R. York, as a homestead, leaving the remaining two hundred and twenty acres of the mortgaged premises from that time forward free from the homestead character. The mortgagee did not at any time present his mortgage debt as a claim to the administrator of the estate of M.R. York for allowance. The court found these facts, and gave a decree refusing a foreclosure as to the one hundred acres set off as a homestead, but decreeing foreclosure upon the remaining part of the premises.
Upon these facts the appellant contends that the decree is erroneous upon the ground that the entire property at the death of the deceased was a homestead, and that the mortgage *663
cannot be enforced unless a claim therefor had been duly presented to the administrator for allowance. The general proposition that a mortgage upon the homestead cannot be enforced unless a claim therefor had been duly presented to the administrator has been settled ever since the case of Camp v.Grider,
For the reasons herein stated it is ordered that the decree be modified by striking therefrom the provisions relating to the continuance of the receiver in his office subsequent to the final decree, and that, as so modified, the judgment be affirmed.
Angellotti, J., and Van Dyke, J., concurred.