Morris v. Branchaud

52 Wis. 187 | Wis. | 1881

Cassoday, J.

In Jackson v. Hull, 10 Johns., 481, it was held by an able court, that “ the creditor who takes a mortgage to secure a debt, by bond or otherwise, has three remedies, either of which he is at liberty to pursue, and all of which he may pursue until his debt is satisfied. lie may bring an action of debt upon the bond; or he may put himself in possession of the rents and profits of .the land mortgaged, by means of an ejectment; or he may foreclose the equity of redemption, and sell the land to satisfy the debt.” With us there can he no ejectment, and hence the mortgagee must be confined to the other two remedies named.

In the Sea Ins. Co. v. Stebbins, 8 Paige, 568, Chancellor Walworth said: “ To authorize the court to interfere and appoint a receiver where there is a mortgagor, or other party to the suit, who is personally liable for the debt secured by the mortgage in case the amount raised upon the sale shall be found insufficient to pay the debt and eosts, the party applying for such receiver must not only satisfy the court that there is a probability that the mortgaged premises will not sell for enough to satisfy the decree, but also that the party w’ho is thus individually liable is himself irresponsible for the probable amount of such anticipated deficiency, after paying all his other just debts.”

In Quincy v. Cheeseman, 4 Sandf. Ch., 405, it was held, that, “ if the premises can be sold in parcels, so that a sale of part will satisfy the debt in arrear, with costs (the entire debt not being payable), a receiver will not be appointed over the entire property.”

In Brown v. Chase, 1 Walker’s Ch. (Mich.), 43, it was held that, “before appointing a receiver to take charge of mortgaged premises, in a suit for the foreclosure of a mortgage, the court must be satisfied — first, that the premises are insufficient to pay the debt; and second, that the party personally liable is insolvent, so that an execution for the balance due after sale would be unavailing. The security is presumed sufficient until the contrary is shown.”

In Morrison v. Buckner, 1 Hempstead, 442, it was held that “ the general rule is, that receivers will not be appointed in mortgage cases unless it clearly appears that the security is inadequate, or there is imminent danger of the waste, removal or destruction of the mortgaged property; or that the rents and profits have been expressly pledged for the debt.”

In Keep v. Railway, 6 Ch. Leg. News, 102, Withey, J., held that among the essential elements authorizing the appointment of a receiver was, that “ the mortgagor or party personally liable for the debt must be shown to be irresponsible for any deficiency on sale of the mortgaged premises.”

The cases cited sufficiently suggest the rules which must be applied to this case. The whole amount of the plaintiff's claim, due and to become due, was only about $3,000. Of this only about $1,400 was due, and that included only about $120 of interest. The mortgaged pi-emises consist of city lots and parts of city lots, which, presumptively, could be sold in parcels. There is nothing in the record indicating that Joseph was not perfectly responsible. Joseph was a maker of the $2,400 note, dated September 13, 18T3, and hence was personally liable for the balance due on it. He was also th§ maker of the two notes and mortgage of $2,000 dated January 2, 1874, and hence personally liable for the $1,000 and interest at 10 per cent, from January 1, 1880, and which had been assigned to the plaintiff as collateral. Thus he was personally liable for all that there was due and payable to the plaintiff at the time of the commencement of this action. This fact of itself would seem to be an insurmountable objection to the appointment of a receiver. Counsel seek to escape from it by claiming that it was alleged in the complaint that Joseph had conveyed to Norbert the mortgaged premises, and that he had assumed the mortgage debt, and that the plaintiff took the collateral mortgage subject to this agreement between Norbert and Joseph; but we fail to find any allegation that the plaintiff has ever in fact released Joseph from the payment of that $1,000 note. But even if he had, Joseph would still be liable for the balance due on the $2,400 note, and that of itself would seem to be sufficient, under the facts of the case, to prevent the appointment of a receiver. Besides, that mortgage had been discharged of record, and the action was in part to vacate that discharge, and until it was done it may be questionable whether it could be treated as a mortoae'e in such a sense as to authorize the appoiutment of a receiver. Counsel urge that Joseph was not a party to the third mortgage of $1,500, dated July 8, 1880; hut that cannot figure in the case, as no part of the principal or interest of that had become due at the time of granting the order appointing a receiver. It will be time enough to consider that mortgage when it becomes due and subject to foreclosure. There is no pretense that any taxes were unpaid, or that any of the property was out of repair, or going to waste, or of any less-value than when the mortgages were respectively given; and since none of the respective mortgage debts had increased in amount since the giving of such mortgages, but on the contrary some of them had been materially diminished, the plaintiff, at the time of the appointment of the receiver, held all the security that the respective mortgagees contracted to receive, and much more.

There seems to be no necessity for considering the affidavit read on the hearing, but of which no copy had been served,, as it was no part of the moving papers.

By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according, to law.