Jacobs v. Gibson

9 Neb. 380 | Neb. | 1879

Lake, J.

In the appointment of a receiver, especially in a foreclosure case, very much must be left to the discretion of the district judge, and unless it is made to appear that this discretion has been exercised unwisely and to the injury of the party complaining, this court will not interfere.

This is an action for the foreclosure of a mortgage upon real property, and the application for the appointment of the receiver was made under the last clause of the second subdivision of sec. 266 of the code of civil procedure, which provides that it may be made “ in an action for the foreclosure of a mortgage when the mortgaged property is in danger of being lost, removed, or materially injured, or is probably insufficient to discharge the mortgage debt.” [Gen. Stat., 568.] A careful examination of the evidence upon which the district judge acted in making the appointment satisfies us that the delicate duty, devolved upon him by the application, was discreetly performed. The full value of the property covered by the mortgage at the time the receiver was appointed, as shown by the average of the estimates placed upon it by nineteen persons, whose affidavits were taken, was considerably less than the aggregate of debt, interest, costs, and taxes, to be satisfied from the proceeds of its sale.

In the absence of an agreement to the contrary, we suppose no one would contend but that a mortgagor is entitled to the rents and profits of mortgaged premises until condition broken, or in other words, until such time as the mortgagee is authorized to proceed by action on the mortgage to subject the property to the payment of his debt. Such doubtless is the law. On the other hand, it is equally clear that on a condition broken, by which the mortgagee is authorized to commence foreclosure proceedings, if the property be inadequate--security, he has thenceforward an equitable lien upon the rents and profits, or so much thereof as may be necessary to the security of the mortgage debt, which he may enforce by proper proceedings.

It will be noticed that the statute before referred to makes no exception in its operation in favor of executors and administrators. It is general in its application so far as parties are concerned. No matter who the defendants may be, if the mortgaged property be “ probably insufficient to discharge the mortgage debt,” the plaintiff is in. a situation to demand that his security be augmented by enough of the rents and profits to make it good.

Indeed we see no good reason for making an exception in favor of the representative of a deceased mortgor, nor how the court can do it in justice to the mortgagee, for it is very clear that rents collected by the administrator would not be liable to the lien of the mortgage, but would belong to the general assets of the estate, and be distributed accordingly among all the creditors.

We see no error in the record, and the order appointing the receiver must .be affirmed.

Order aeeirmed.