175 N.W. 881 | S.D. | 1920
In an action brought by the plaintiff against the Cranmers and others, wherein plaintiff sought the foreclosure of a real estate mortgage given it by the Cranmers, one Gannon was appointed as receiver, both -pendente lite and
The notice of appeal specifier particularly the portions of the judgment appealed from, and thus eliminates from our consideration several of the alleged errors specified below as well as several assigned in this court.
Appellants question the propriety of the receiver’s expenditure of money for. a certain repair. As this presents a question of fact, the reviewi of which would necessitate our passng- upon the sufficiency of thie evidence to support the court’s finding in relation thereto, we cannot, for reasons hereinbefore set out, review same.
The only other matters from which appeal was taken were those parts of- the judgment approving the payment of the $307.96 to apply on the mortgage debt, and directing the receiver to pay plaintiff $117.62 — the amount of deficiency judgment.
It is true that this court has held, in Roberts v. Parker, 14 S. D. 323, 85 N. W. 591, and. Sherman v. Wichner, 35 S. D. 436, 152 N. W. 700, that a receiver of mortgaged property can be appointed in foreclosure proceedings. . This is specifically provided for by section 2475, Rev. Code 1919. But - while, under such statute, the court can unquestionably appoint a ret ceiver, this is for the sole purpose of preserving the property arid doing that in relation to the .security which, under the mortgage contract, the mortgagor should do, namely, preserve the security and see to it that no liens having priority over the mortgage are created. In order that the receiver may so pre
“A mortgage binds only the land, and the rents and profits of the premises do not enter into, or form any part of, the security.” .
The only question before this court in Roberts v. Parker or Sherman v. Wichner was the authority of the court. to appoint a receiver in foreclosure action. Whether rents and profits collected by -such receiver could be applied to the mortgage debt was not before this court for consideration in either case, and nothing is said in either case in relation thereto.
No reason exists for directing a new trial. It is ordered that the judgment appealed from be modified, so that it direct the receiver to pay to the appellants, in addition to the amount now directed to be paid them by such judgment, the additional sum of $307.95 and interest at 7 per cent, per annum from the date of the judgment on foreclosure and the sum. of $117.62, with interest at 7 per cent, per annum from the date of the judgment appealed from herein. As so modified, the judgment is affirmed, without costs to either party.