123 Cal. 231 | Cal. | 1898
When this case was in Department the opinion hereto annexed was prepared by Mr. Commissioner Chipman. After due consideration of the case, we are satisfied with that opinion and with the conclusions therein reached, and that the judgment of the court below should be modified in accordance with the directions of said opinion. Therefore, for the reasons given in that opinion, the decree of foreclosure and the order settling the receiver’s account are affirmed, and
McFarland, J., Harrison, J.,
Garoutte, J., Van Fleet, J., Temple, J.
This is an action for the foreclosure of a mortgage. The pleadings are verified. The complaint was filed June 19, 1896, and alleged, among other things, that the entire estate of which defendant was administratrix, including the mortgaged premises, was appraised at a value less than the mortgage debt, and that said mortgaged “premises are inadequate for the satisfaction of said indebtedness, and will not probably sell for enough to satisfy the decree in this case.” The complaint prayed for the appointment of a receiver “to take charge of said premises and its income, rents, and profits, with authority to harvest and sell the crops so harvested, and the same be applied on said indebtedness.” Upon filing the complaint, the court made an ex parte order, appointing a receiver as prayed for. Defendant demurred to the complaint in due time, and on July 6th moved the court to vacate the appointment of the receiver upon the ground that the court had no jurisdiction to make the order, and that the facts do not establish a-proper case for such appointment. The court denied the motion. The motion of defendant was heard upon an uncontroverted affidavit; from which it appeared, among other things, that the mortgage did not contain any provision by which the rents, issues, and profits of the premises were mortgaged; nor did the mortgage provide for the appointment of a receiver.
It appeared from the affidavit that the only real property belonging to defendant estate is the mortgaged property; that defendant’s intestate died April 5, 1896, leaving as his sole heir a minor son; that defendant was duly appointed administratrix May 1st, and on June 8th she petitioned to have the said real property set apart as a homestead for the benefit of the minor, which was done by order of the court of June 22, 1896. It also appeared in the affidavit that the defendant administratrix and
A fourth bill of exceptions was duly settled setting forth that the report and account of the receiver came on to be heard April 17, 1897, together with plaintiff’s motion for an order directing the receiver to pay to plaintiff the moneys in his hands, the proceeds of the crops grown on the mortgaged premises; that defendants still insisted upon their objections to the appointment of the receiver, and objected to the hearing of the'account and the granting of plaintiff’s motion, and claimed that the moneys in the hands of the receiver should be paid to defendant administratrix and guardian; that the receiver was acting without authority of law, and the court had no jurisdiction to hear or to settle the account because the appointment was void; that the account showed that the receiver had received from the rents and profits of the mortgaged property $1,173.69, and had expended in harvesting the crops and other ways $401.77, leav
1. The point particularly relied upon by appellants is that, under subdivision 3, section 564 of the Code of Civil Procedure, the court cannot, by the appointment of a receiver, take from the mortgagor, or from any person claiming under him, the rents, issues, and profits of the mortgaged premises and apply them to the mortgage debt unless the mortgage so provides in terms. Quite recently the point has been under examination in this court and the previous cases reviewed. (Bank of Woodland v. Heron, 120 Cal. 614.) The subject was also fully discussed in Simpson v. Ferguson, 112 Cal. 180; 53 Am. St. Rep. 201. Upon the' authority of these cases and the principles therein enunciated we think the trial court erred in directing the proceeds of the growing crops .of the mortgaged premises to be applied to the deficiency judgment In the Bank of Woodland case it appeared that an assignment by bill of sale had been made of the crops before the assignor or the assignee knew of the order appointing a receiver; and that the rights of third persons had intervened, and it also appeared that the receiver never had actual possession of the crops; but we think that the principle upon which the decision rests, and the reasons advanced in support of the conclusions reached, are decisive of the rights of appellants in this case, although the facts differ somewhat in the two cases.
Defendant administratrix entered upon her duties as such May 1, 1896, and was appointed guardian of the minor’s person and estate April 10, 1896. She was in possession of the property at the time the receiver was appointed, and remained in possession of the real property thereafter. It does not appear when the receiver took possession of the crops, but presumably
In the case at bar, the mortgagee had no lien upon the crops by the express terms of his mortgage. The decree of foreclosure was not entered until December 8, 1896, long after the crops were gathered, and the deficiency was not ascertained until upon sale under the decree. The authority of the receiver and the power of the court over the crops, even where the mortgage undertakes to subject the rents, issues, and profits to the mortgage, it is thus seen are very much circumscribed under our law. Where the mortgage is silent upon the subject the power given the court or receiver must come alone from section 564 of the Code of Civil Procedure, and upon this section alone must respondent rely. In the recent Bank of Woodland case, supra, the question of the right of the receiver to hold the crops by virtue of his appointment alone, and to apply their proceeds to the deficiency judgment after having reduced them to possession, and whether such possession under the appointment as receiver gave the lien, received some attention. Speaking of the effect of the appointment being treated as a sequestration of the property mentioned in the order of appointment, it was said: “The cases in which that principle was declared are mainly cases in which complainants at whose instance the receivers were appointed had some estate in, or some right to, or lien upon the property involved prior to and independent of the appointment of the receiver.....In all such cases the complainants have estates or interests in the property, or liens thereon, independent of and not created by the receivership, and the receiver is appointed to preserve and enforce their pre-existing rights. But in the case at bar the appellant, under his mortgage contract (it did not purport to mortgage the rents, issues, and profits) and the laws of this state, had no estate or interest in or lien upon the growing crops prior to and independent of the receivership; and the rule contended for by him as above stated should not be extended to such a case.”
2. The complaint was twice amended and demurrers were interposed. It is objected to the second amended complaint that it did not allege facts sufficient to constitute a cause of action, and that it appears thereby that plaintiff had not legal capacity to sue, and failed to show that plaintiff was the owner and holder of the note and mortgage.
It was alleged in the second amended complaint and not denied in the answer, that the note and mortgage were executed by defendant’s intestate to George L. Locke, plaintiff’s intestate; that the latter died December 9, 1895, and that "after due proceedings had in this court this plaintiff was, by order of this court, duly given, made, and entered, appointed administratrix of the estate of the said George L. Locke, deceased, and thereafter duly qualified as such administratrix by taking the oath of office and giving bonds as required by law.” It is not enough that it does not sufficiently appear from the complaint
There is nothing in the point that plaintiff is not alleged to be the owner and holder of the note and mortgage On their face they are made to plaintiff’s intestate, and were in plaintiff’s possession as administratrix and were offered in evidence. An averment that plaintiff was the owner and holder was unnecessary. (Bank of Shasta v. Boyd, 99 Cal. 604.)
3. Appellant claims that the motion for a new trial should have prevailed: (a) Because there was no evidence of nonpayment other than the promissory note itself, which was not identified, with its indorsements of payments; and that introducing the note was making a witness of plaintiff’s intestate. (Citing Code Civ. Proc., sec. 1880, subd. 3.) This section of the code does not apply, (b) The denial of nonpayment is made on want of information to answer the allegation of nonpayment. The evidence of nonpayment was the introduction of the note, on which certain payments were indorsed, as shown in the complaint. The objection made to this evidence was that it was incompetent, irrelevant, and immaterial, because it was not shown that the indorsements were made by authority of anyone, or that they were “all the indorsements that should be upon the note, and were not proper evidence of what the payments upon the note were.” The court found that the allegation of nonpayment in the complaint was true. There was, we think, evidence of nonpayment—enough to support the finding. Possession of the note by plaintiff was some evidence of nonpayment.
4. It is complained that the findings of fact were embodied in the decree. This was permissible (Hopkins v. Warner, 109 Cal. 133); and we think the findings support the judgment of foreclosure.
The account of the receiver shows that the expenses incurred by him all related to the harvesting, protection, and sale of the grain; nothing is charged for his services. While we have held that the court had no authority to empower him to do this
Our conclusion is, that the decree foreclosing the mortgage should be affirmed; that the order settling the receiver’s account should also be affirmed; but that the order directing the net proceeds of the crops to be applied to the payment of plaintiff’s deficiency judgment should be modified so as to direct that such proceeds be turned over to defendant’s administratrix as assets of the estate.
Haynes, C., and Belcher, C., concurred.