119 Ark. 543 | Ark. | 1915
(after stating tlie facts). When suit was instituted against appellants to enjoin them from, foreclosing their trust deeds under the power ( contained therein the .appellants, while denying the allegations of the complaint in that suit, did not ask that the complaint he dismissed and that they he allowed to foreclose under the power contained in their trust 'deeds. On the contrary, they made their answer a cross-complaint, in which they set up the indebtedness alleged to he due them by .'the, estate of Peter Brickey, deceased, and prayed that the chancery court grant them' a decree for ’-the amount of that indebtedness, and that the deeds of trust securing such indebtedness be'-foreclosed by the chancery court, and that the ”, lands se--curing the indebtedness be sold by the orders of the chancery court. While in their cross-complaint they allege that the estate of Peter Brickey ivas insolvent, .and- that the indebtedness due them from the estate was in excess of the value of the lands given as security therefor, and while they asked that a receiver' be appointed to. take charge of the real estate and to rent out the same and collect the rents and hold the same subject to the orders of the court, yet they did not insist on a ruling of .the court as to the appointment of such receiver. It does not appear that any testimony was introduced oh that issue. They did not demand any ruling of the court granting the prayer of their complaint in that particular; but, on the contrary, they permitted the administrator to hold the possession of the lands until after the sale was made under the orders of the chancery court and allowed the administrator to retain the possession of said lands until the commissioner made his final, report' to the 'Court, and their deeds were confirmed. If appellants had taken the necessary steps to prove the allegations of their cross-complaint, to the effect that the' lands were insufficient in value to discharge their mortgage debt, and that the' estate of Peter Brickey was insolvent, and had demanded of the chancery court, on this showing, that a receiver be appointed, then they would be in. a position, if the chan-eery court had denied their request, to urge that they were entitled to the rents for 1914. But, as they did not do this, they are in the attitude of consenting that the administrator of Brickey should hold the possession of the lands as a tenant by sufferance.
"We held in Reynolds, Admr., v. Canal & Banking Co., 30 Ark. 520, that a mortgagee was not entitled to the rents and profits until he had taken possession, or the necessary steps to obtain possession. Here the facts set forth in the complaint are not sufficient to show that the appellants, as the mortgagees or beneficiaries in the deeds of trust, had'taken the necessary steps after asking for a foreclosure of their deeds of trust through the chancery court, to deprive the mortgagor, or, in this case, the administrator of his estate, of the right to the possession of the premises during the foreclosure proceedings. If Peter Brickey had been living and had instituted the same proceedings to enjoin the appellants from proceeding to foreclose the deeds of trust under the power contained therein, making the same allegations as his administrator made in the suit to enjoin, he would have been entitled to the relief prayed upon proving the facts alleged. And if the appellants, instead of insisting on their right to foreclose under the power and asking affirmative relief of that sort, had answered merely denying the allegations, and then, by way of cross-complaint, had asked the chancery court to foreclose the deeds of trust, and had introduced proof to show that the mortgaged property was probably insufficient to discharge the indebtedness of Peter Brickey to them, and had not insisted on the court appointing a receiver until after the sale had been made and confirmed, and until after Brickey had collected the rents for 1914, then they would not be entitled to these rents by virtue of their purchase at the foreclosure sale, and would not be in a position to compel Brickey to account to them for such rents. The administrator’s status in this suit is precisely the same as would have been Peter Brickey’s in the case supposed.
The facts set forth in the complaint and admitted by the demnrrer show that at the time of the institution of this suit, which was December 11,1914, the appellee, Cot- . ter, as administrator of the estate of Peter Brickey, de- . ceased, had collected the rents for the year 1914, or taken notes for the same, as the property of the estate. The ' facts show that the commissioner sold the lands, under ' the order of the chancery court, in October and reported : the same to the November term, when the same was.confirmed. Appellants, therefore, did not acquire their title under the foreclosure proceedings until the confirmation of the sale, and during all this time they had permitted the administrator of the estate of Peter Brickey to retain possession of the lands and had not attempted to disturb his possession until, as the allegations of their complaint of December 11 show, he had collected the rents for the year 1914, as the administrator of the estate.
In Deisch v. Moore, 97 Ark. 262, this court held that “a purchaser at a mortgage sale is not entitled to recover from the mortgagor -in possession the' rents and profits during the period allowed for- redemption..” And in North American Trust Co. v. Burrow, 68 Ark. 584, we said: “The status of the owner of the-.equity-of -redemption in possession and during the period allowed for redemption, is that of a tenant by sufferance, who is not required to pay rent.”
These principles are applicable here; for. the possession of the administrator of the estate of Peter Brickey, as we have seen under the admitted facts, was the same as that of a mortgagor in possession, at least until the confirmation of the -sale to appellants under the decree of the ehancery court. Up to this time the appellants had neither taken possession nor the necessary steps to give them possession. The decree-is therefore affirmed.