76 Ind. 440 | Ind. | 1881
The appellees, on the 22d day of November, 1876, filed in the court below a verified complaint against the appellants, for the appointment of a receiver of the rents and profits of real estate, averring, in substance, the following facts, to wit: “That, on the — day of August, 1874, the appellant Connelly made his notes to the appellee Josephine M. A. Dickson, the wife of her co-appellee, for the sum of twenty thousand dollars, the same being for the unpaid purchase-money of certain described real estate, which the appellees, on that day, conveyed to said appellant, and, to secure the payment thereof, made a mortgage on said realty, which was duly recorded; that, upon a decree of foreclosure of said mortgage, the sheriff, on the 11th day of November, 1876, duly sold the real estate to the said Josephine for the sum of twenty-one thousand dollars, the full value of the property, and delivered to her a certificate of the sale ; that, after crediting the said bid, there remained due and unpaid upon the mortgage debt the sum of two thousand dollars; that there is a dwelling-house on the mortgaged premises, which said Connelly has rented to the
Todd was served with notice, but as to Connelly, there was a return of not found. The court appointed a receiver and empowered him to collect the accruing rents from Todd, in accordance with his contract with Connelly and, in case Todd should not be content to occupy the premises, to rent to another suitable tenant, and to hold the sums received, on deposit in a bank named, subject to the order of the. court. Certain proceedings were had between the appellees and said Todd, which, as Todd has assigned no error, need not be detailed.
At the September term, 1877, Connelly appeared and demurred to the complaint, for the alleged want of facts, and saved an exception to the overruling thereof. Thereafter, on the 23d day of November, 1877, he moved for a discharge of the receiver and for an order upon him to pay the money in his hands to said Connelly, upon the ground that the court had no power to appoint such receiver, and to the; overruling of this motion saved his exception.
On November 28th, 1877, the receiver made to the court a report, showing in his hands $786, and asking to be discharged. The court allowed him $100 for his services as receiver, ordered the remaining $686-paid into court, which was done, and declared the receiver discharged. No exception was taken to this report, or to the order of discharge.
The assignments of error made in the general term, and which, by a proper assignment here made, we are called on to reconsider, are, in substance, that the court erred, (1) in. ovei’ruling the motion of the appellant to discharge the receiver, and for the payment of the money in his hands to the-appellant; (2) in overruling the demurrer to the original complaint; (3) in overruling the demurrer to the supplemental complaint; (4) in the judgment directing the money paid by the receiver into court to be paid to Mrs. Dickson.
The demurrer to the original complaint presents the first, and principal question. The appellant disputes the .right of the court to appoint a receiver, except in a pending case, in. aid of which a receiver is necessary, and especially insists-that the court can not appoint a receiver to take the possession or collect the rents of real estate during the year next after the sale thereof upon execution or upon decree of fore
The last clause may be regarded as a declaration that the court may appoint a receiver in any case in which a court of equity, according to the established rules on the subject, might appoint.
It is perhaps of rare occurrence that courts are called upon to appoint a receiver after final decree in a cause, but that such appointments may be made is well settled; and this may be done notwithstanding the original bill did not pray •a receiver, since the appointment in such case is made because ■of occurrences subsequent to the decree. High on Receivers, «ec. 110, and authorities cited; Edwards on Receivers, 19; Kerr on Receivers, 141. The case of Dale v. Kent, 58 Ind. 584, is plainly distinguishable, and not at all in conflict with the foregoing authorities.
The peculiar circumstances and motives which produced the passage of the act allowing a year’s time for redemption from such sales are historical, and too well remembered and understood to need rehearsal. But, aside from any reference to the time and circumstances of the passage of the law, it is sufficiently manifest from the provisions of the act itself, that its main purpose was to permit the owner to remain in possession, after the sale of his land, with a view to enable him to redeem it from the sale, and that to this end he might avail himself of the rents or profits accruing during the time so allowed. Incidental to this chief design was doubtless the benevolent purpose that the debtor, for a year at least,- should not be deprived of a home for himself and family. On the other hand, the intention is equally clear that, if the property in any case be not redeemed, the debtor or former owner shall be liable to account to the purchaser for the reasonable rents and profits during the year.
This court has several times had the clause above quoted
The immediate question before us, however, concerns the •case of a judgment debtor in possession by a tenant of property, which, before the sale, was his own. In such a case, it can not be justly said that the relation between the debtor in possession and the purchaser at the sale is, under the statute, of a character so purely legal and peremptory as, under any and all conceivable circumstances, to forbid equitable interference. Suppose, for illustration, that the property is a mine of coal, lead or other valuable ore, which might be worked out and exhausted; or a mill, machine shop, or other manufacturing establishment, which, within a year, without proper repairs, might be worn out: must the law be so interpreted that the insolvent debtor, who has avowed his purpose to use the time allowed for redeeming
There is nothing in the language of the law which warrants the inference of an implied repeal of the power of the courts to interfere in such cases, in accordance with the established rules of equity jurisprudence. The relation between the parties, it may be, is not easily defined. They are not debtor and creditor. The purchaser may be a stranger, who never had a demand ; and, if he be the execution plaintiff, he is no longer a creditor; because, in respect to the land sold, the debt is extinguished by the sale. He may or may not become a creditor for the accruing rents and profits, according as there shall or shall not be a redemption from, the sale. Neither is the relation between them strictly that of landlord and tenant, though somewhat resembling it. If it were such, it would not be beyond the power of the courts, in a proper case, to appoint a receiver to protect the landlord’s interest, either in the property itself or in the rents which he might be entitled to receive.
The debtor, who remains in possession after the sale of his land, certainly owes some duties to the purchaser. He has charge of the property, and without doubt may be restrained from committing actual waste ; but mere permissive waste may be no less harmful. Sometimes, too, an injunction does not afford adequate relief against waste; as, for instance, when valuable timber has been cut, or other valuable material has been severed, for the purpose of removal and sale; and, unless, in such cases, a receiver can be appointed, adequate protection and relief can not be administered.
Freeman, in his work on Executions, sec. 349, says: “The purchaser is entitled to such equitable remedies as may be-
It is not necessary, however, for our present purpose, to arrive at an exact definition of the relation between the purchaser and the one in possession during the time allowed for redeeming land sold at sheriff’s sale. Whether, by force of the law, that relation is equitable or purely legal, is pertinent to the discussion, but it is not controlling of the exact point to be decided, which is, whether at the instance and for the benefit of the purchaser, the court has power during the year next after the sale, for any cause, to appoint a receiver-over the property. Before the passage of the act of 1861, and when the purchaser at a sheriff’s sale was vested immediately with the absolute title and right of possession, the courts had, and indeed still have, the express power to appoint a receiver when the mortgaged property is insufficient to discharge the mortgage debt, “to secure the application of the rents and profits accruing before a sale can be had.”
The fact, that the lights axxd obligations of the parties in such cases are declared by statute, does not make them any stronger or more sacred than if the statute did not exist, and the same rights and obligations arose from a contract in each case between the parties. But it can hardly be doubted that, in the latter case, a debtor permitted to remain in possession with a right to redeem within a year, but bound to suiTender possession and pay or account for the rent to the creditor if he did not redeem, would be subject to the power of the court to enjoin him against committing waste, and if necessary on account of his insolvency or other good cause, to appoint a receiver to collect and preserve the rents and profits. In McCaslin v. The State, ex rel., 44 Ind. 151, on page 174, it is said : “There seems to be no room to doubt that the cutting down and removing of valuable timber from the land in controversy, and especially where the defendant only claimed the title and possession of such land under a title bond, the purchase-money being unpaid, and it being alleged and proved that the defendant
But if, to prevent waste and to preserve the land, an injunction may issue or a receiver be appointed, in cases where the rights of the parties are defined by contract, it follows that this statutory right of possession is no more absolute •and beyond equitable interference; and, if the interference may be to prevent or preserve from waste, it may as well be to collect rents and profits if necessary in order to enforce the rights of the parties in respect thereto. It comes back, finally, to the equity rule, which is reaffirmed in the code, that “A receiver may be appointed by the court, * * when, in the discretion of the court, it may be necessary to secure ample justice to the parties;” and a judgment debtor remaining in possession under the law is not exempt from the rule. We are not, however, to be understood as meaning that a receiver may be empowered to disturb the actual possession of the owner, or of his tenants, occupying under ■contracts made in good faith. Our decision is, that, where it is shown, as in this case it is shown, that the property is in the hands of a tenant, who is under contract to pay a stipulated rent, which has not been paid to the judgment debtor or the owner of the land, and that the latter is insolvent and can not redeem, the court may appoint a receiver to collect such rents, and to hold the same until the end of the year, if a redemption be not sooner made, to be paid over to the debtor, if he redeems, and otherwise, to the purchaser.
The judgment is affirmed, with costs.