Mahon v. Crothers

28 N.J. Eq. 567 | New York Court of Chancery | 1877

The Chancellor.

The complainant’s mortgage is the first encumbrance upon the mortgaged premises. He applies for a receiver on grounds which, according to the decisions and practice of the court, are sufiicient to entitle him to that relief. That his mortgage is the first mortgage on the premises is no objection to granting the relief. In Cortelyou v. Hathaway, 3 Stock. 39, it was said that “ the rights of the first mortgagee and those of a subsequent mortgagee, in respect to obtaining a receiver of the mortgaged premises, are entirely different; that the former has the' legal right -to the rents and profits, but a court of equity has been reluctant to appoint a receiver upon the application of a first mortgagee for the reason that such mortgagee has a remedy at law by ejectment, by which he may get into the receipts of the rents and profits.”

It is very clear that where the first mortgagee has come into this court to foreclose his mortgage, and presents a case which would entitle a subsequent mortgagee, according to the practice, to a receiver, it is not according to the principles and practice of this court to refer him to the courts of law for means to reach the rents and profits. The complainant in this case shows that he has no personal security for his mortgage debt; that the mortgaged premises are an insufficient security; that the mortgagor, who is in receipt of the rents and profits, not only has not kept down the interest, hut has not paid the annual taxes, whereby a lien on the premises therefor paramount to that of the mortgage and bearing a high rate of interest has been created and still exists; a lien which, unless the property be redeemed therefrom, will extinguish the mortgage. He is entitled to a receiver.