58 Neb. 663 | Neb. | 1899
A decree was entered in this cause in the district court foreclosing a real estate mortgage, upon which an order of sale issued, the property sold thereunder to one Cas
It appears from the findings that Louisa J. Hauser, who is in possession of the mortgaged premises, and who alone executed the note secured by the mortgage, is insolvent and financially irresponsible, and it is insisted that a receiver should be appointed because the mortgaged property is wholly insufficient to pay the debt. If the premises were true, the conclusion of counsel stated above might be irresistible5 but the record fails to show the mortgaged premises inadequate to pay the claim of plaintiff, while on the other hand the court below found that the amount of the debt, interest, taxes, and costs aggregated the sum of $3,206.89, and that the value of the mortgaged real estate was $3,850, so that there was no foundation for the contention that the property is probably insufficient to cover the indebtedness secured by the mortgage. It is urged that by the time the cause is reached in this court on the appeal from the order of confirmation that the debt will exceed the value of the property. This fact alone is insufficient ground for the appointment of a receiver. The Code of Civil Procedure,
Again, it fully appears from the findings of the trial court that the mortgaged property is occupied by the debtor as a homestead. The case, therefore, falls squarely within the decision in Chadron Loan & Building Ass’n v. Smith, 58 Neb. 469, where it was held that the remedy of appointment of receiver on foreclosure was not applicable when the mortgaged property is the debtor’s homestead. In that case a receiver was sought pending a stay, while here the apjfiication for a receiver was made after sale and confirmation. But this distinction is unimportant. An appeal has been taken from the confirmation and a supersedeas bond given, so that the order confirming the sale is not operative pending the appeal. The order refusing a receiver is
Affirmed.