213 Wis. 499 | Wis. | 1934
The respondent Juneau Park Apartment Corporation claims that the only ground on which a receiver may be appointed in a suit to foreclose a mortgage is that the mortgagor or owner of the mortgaged premises has committed waste; that waste may consist of permitting property to fall into disrepair, or in failure to pay interest or taxes, but that waste of the latter kind does not warrant appointment of a receiver unless the amount of the defaults in that respect exceed the amount of payments by which the principal debt has been reduced; that the evidence in the instant case shows that the owner of the fee has not permitted the premises to fall into disrepair, and that the amount of the principal payments, at the time of the hearing of the motion, exceeded the amount of the defaults in payment of interest
We consider that respondents’ counsel take an altogether too narrow a view of the decisions cited. The propositions decided in the Grether Case were that a receiver will be appointed in a foreclosure case because of or “in certain cases to prevent” waste; that non-payment of interest and taxes when due constitutes waste; and that, while a pledge of rents and profits does not create a lien upon them until the mortgagee obtains possession, “all the authorities agree that a pledge of rents and profits vests in the mortgagee a fight thereto which equity will recognize in a proper manner;” and that “the only way in which it (the right) can be enforced in this state is by the appointment of a receiver under circumstances justifying the procedure.” We see no reason to retract any of the above statements, or to cite any authority or reason therefor beyond those given in the opinion. The propositions first above stated were carefully considered in the first instance and the effect of a pledge of rents and profits was carefully considered upon a motion for rehearing, after presentation of briefs upon that subject at the request of the court.
The decision in the Crosby Case recognized the rules laid down in the Grether Case and refused to recede therefrom. From that point the decision went on to state in substance that a receiver would not be appointed in every case of waste by non-payment of interest and taxes, and that if the payments on the principal so greatly exceeded the defaults in
It appears in the instant case that the taxes on the mortgaged premises are nearly $5,000 per year and that the semiannual interest payments are slightly over $4,000 and another year’s taxes and three more interest payments will fall due before the sale of the premises can be had in the ordinary course of litigation in Milwaukee county. These items, with accrued interest on interest and taxes, will in all probability bring the amount of the defaulted payments of
We consider that the denial of the motion to appoint a receiver was due to a misconception by the learned circuit judge of the effect of the Grether and Crosby Cases, supra. This seems apparent from the recital in the order that “such waste did not reduce the value of the mortgaged premises in excess of said amount by which the mortgage debt has been reduced, and therefore the facts do not warrant the appointment of a receiver, and the failure of the owner to apply the rents and profits is immaterial.” If the order was based upon an erroneous view of the law, it must be reversed. And if it was not so based it must be reversed because it was not based on the exercise of a sound discretion.
It may further be said that holders of bonds secured by a trust deed are hardly in the position of a mortgagee who loans his money on the strength of the security of mortgaged premises. They are numerous and scattered. The interest of no single holder is ordinarily sufficient to warrant him in redeeming from tax sales, if he is financially able to do so, which ordinarily he is not. Hotels, apartment houses, and the like are too often constructed wholly out of the proceeds of bond sales, part of which have gone to promoters and
The respondents claim that the order made in the suit to foreclose the second mortgage denying the motion for a
By the Court. — The order of the circuit court is reversed, with directions to enter an order appointing a receiver with suitable provision- requiring the Juneau Park Apartment Corporation to account to the receiver for all rentals received since the date of the order appealed from.
On March 6, 1934, the following memorandum was filed:
Upon motions of respondents and appellant to amend the mandate entered herein:
It is ordered that the mandate is amended to read: The order of the circuit court is reversed, with directions to enter an order appointing a receiver; requiring the Juneau Park Apartment Corporation to account to the court for all rentals received since the date of the order appealed from and to pay over to the receiver to apply upon unpaid taxes the amount received less disbursements for necessary operating expenses; and requiring the John Plunholz Company as purchaser of the mortgaged premises since entry of the order and its assigns likewise to account and pay over.