35 How. Pr. 481 | N.Y. Sup. Ct. | 1867
From the papers presented upon this motion, it'appears that on the 29th day of June, 1866, an interlocutory decree was made in this cause by Justice Potter, in and by which it was adjudged that the defendant ■ Duff, at the time he acquired title and took possession of the premises in controversy in this action, was and is a mortgagee of said property, in possession, and was bound to account for the rents and profits received by him; and it was
It further appears that after said Duff had so rendered his accounts before said referee, and while the investigation of the same was going on before him, application was made to the court, upon affidavits asserting that the said defendant was overpaid, and that he had made false charges against the property, and was guilty of fraud and other misconduct in relation thereto, for the appointment of a receiver of the rents and profits of said property, and to remove the said Duff from all trust or control over the same.
This application came on to be heard at chambers, before Judge Leonard, in July last, and was heard by him upon very voluminous affidavits and other papers, and finally resulted in a decision and an order, made on the 29th of July last, by the said judge,, in and by which he appointed said Duff receiver of said property, and also further ordered that
This motion to remove said receiver, is the next proceeding in court in the cause, and is made before the coming in of the referee’s report, and while the proceeding for the accounting is still pending before the said referee, and while an appeal is pending also from this order of Judge Leonard appointing such receiver. It is apparent from the decree made by Judge Potter, and this view is confirmed by letter from him, produced and read on the hearing, that he properly abstained from appointing a receiver in the action, among other reasons, on the ground that Duff was a mortgagee in possession, and was, as such, being abundantly responsible, entitled to remain in possession until his debt was paid. It is unquestionably, as a general rule, the settled doctrine of the courts of equity that when anything is due to a mortgagee in possession he will not be deprived of such possession by any appointment of a receiver. (Edwards on Receivers, 53; 1 Hilliard on Mort. 441; 13 Vesey, 377; 16 Id. 469; Trentor agt. Woodruff, 2 Green. 210.)
In Rew agt. Moore (2 Jac. & Walker, 552). Lord Eldon said: “ Considering the question as between mortgagor and “mortgagee,T do not know of any instance where a mort- “ gagee in possession has said by answer that anything was “due him, that the court has tried upon affidavits against “ the answer whether that was due or not. In Brickford "case (Janels agt. Brickford, 13 Vesey, 377), I said that if “he would swear that sixpence was due, I would not appoint “ a receiver.” In Brewer agt. Sewell (1 Jac. & Wel. 647), Lord Eldon also said: “I know no instance where the court “has appointed a receiver against a mortgagee in possession, “unless the parties making the application would pay him “ off according to his claims as stated by himself.’’ And particularly is this so when the mortgagee is responsible and is
Under and by virtue of that order he became a receiver of this court, and is- therefore clearly subject to its control, like any other receiver, and is removable for subsequent mis