19 Iowa 183 | Iowa | 1865
We do not agree with appellee’s counsel, that under our law a party cannot appeal from an order appointing or refusing to appoint, a recejyer_ rp^jg r5glat is fairly recognized and given by §§ 2631 and 3495 of the Revision. Such an appeal was considered in Adair v. Wright, 16 Iowa, 385. It is true this objection was-not made, but we entertained neither then nor now any doubt as to the right of appeal.
We are to inquire then whether the court below erred in refusing to make the appointment.
According to plaintiff’s claim, there is due and unpaid on their mortgages about $3,800 or $3,900, and taxes paid for the redemption of the property, say $800 to $900. It is also averred that the mortgagor is insolvent, that he is without other property; that the. mortgaged premises are inadequate security, and that they are going to waste, &c. Defendants deny an indebtedness beyond some $1,800, deny the waste, aver the value of the premises to be $8,000, by not denying, admit the insolvency, and aver th¿t the premises are and were, before the mortgages were given or debts contracted, used, as a homestead. It is claimed that there are other liens and incumbrances vastly greater than the whole value of the property, but of this there is no evidence in the record. We may also state that defendants’ plea of usury is denied, and also by an averment, that as to one of the mortgages, the plaintiff bought the same upon the assurance of defendants that it was all right, that there was no defense, and that it would be paid, when due. This in turn is denied by defendants. Each party made oath to their statements, in support and in opposition to the motion for the receiver.
The principle derived from the cases, which, by analogy, is applicable here, is this: Formerly the mortgagee held the Jegal title, and was entitled to possession. Under our law this rule is changed, and the mortgagor has or is entitled to both; and this is emphatically so as to the homestead. Now the rule has been, from an early date,
Affirmed.