124 Ky. 426 | Ky. Ct. App. | 1907
Opinion op the Court by
The only question-involved in this case is whether or not the orders of the judge of the lower court relating to the appointment of a receiver can he sustained. In February, 1904, the appellant sold to O. P. Murray a tract of land containing 215 acres, for which he agreed to- pay $4,200. He executed to her for this amount five notes, for $840 each, due, respectively, in one, two, three, four, and five years from date. O. P. Murray died on the 13th day of June, 1906, leaving surviving him his widow and four infant children. During his life, and with the consent of appellant, he sold 13 acres of the land. At the time of his death no part of the consideration had been paid, and appellant had also paid the taxes for the years 1903 and' 1904. Neither the notes nor the deed provided that, upon the failure of Murray to pay any of the notes, all of them should become due, so that in «Time, 1906, the notes due in February, 1905 and 1906, were unpaid, as were the notes due in 1907, 1908, and 1909. On the 16th day of June, 1906, appellant brought this suit against the widow and children, averring that the land could not be divided without materially impairing its value, setting up her indebtedness, and alleging that the property was insufficient to satisfy her debt, and that it was in danger of being materially injured, and would be so materially injured, unless the court took charge of same; that there was wheat, corn, and tobacco growing upon the land; and she asked for the appointment of a receiver to take charge of the land, and that the
The evidence heard by the judge with few excep^tions, was in the form of affidavits; there being about an equal number introduced in behalf of each party. The substance of the affidavits introduced in behalf of appellant was that the decedent paid for the land as much as it was worth; that the farm had been cropped heavily in 1904, 1905, and 1906, which, in connection with the usage of it, had caused the land to deteriorate and diminish in value; that when Murray bought the land there were 12 or 15 acres of fairly good timber on the same; which he had cut; and that the property was in danger of being materially injured by reason of its usage and want of care, and there was much danger that the plaintiff would lose a part of her debt. The affidavits for appellee were in substance that Murray cultivated the land in a farmlike manner; that he improved the land in divers ways; that no timber was sold from the place, or cut, except that which was used in making some improvements; and that the farm was in better condition than when the appellant owned it, and worth more money than when she sold it — some of the affiants putting the increased value at as much as $500. We think it may be fairly said that the evidence discloses that the farm, when the application was made, was in about the same condition that it was when appellant sold it, and worth about the same amount. Appellant’s security had been lessened, however, by the fact that 13 acres of the land had
Civil Code Prac., sec. 298, in part provides that, ‘‘ on the motion of any party to an action who shows that he has * * * a lien upon or interest in any property or fund, the right to which is involved in the action, and that the property or fund is in danger of being lost, removed or materially injured, the court or the judge thereof during vacation may appoint a receiver to take charge of the property or fund during the pendency of the action.” The only authority for the appointment of a receiver in a case like this is to be found in this section, and it must be made to appear that the property which is sought to be put in the hands of a receiver is in danger of being lost, removed, or materially injured, or (we might more properly add) that the property is in danger of being “materially injured,” as there is no danger that this property will be lost or removed. There is a marked distinction, and one that has been carefully preserved by this court, as we will proceed to show, between the section of the Civil Code of Practice quoted and section 299, providing that, “in an action by the mortgagee for the sale of mortgaged property, a receiver may be appointed if it appear that the property is in danger of being lost, removed, or materially injured, or that the condition of the mortgage has not been performed, and that the property is probably insufficient to discharge the mortgage debt.” Under this latter section a receiver may be appointed to take charge of the mortgaged property, if it appear that the condition of the mortgage had not been performed, and that the property is proba
There is no pretense that appellant is entitled to the rents or profits of the land by virtue of any contract, and in the absence of a contract it is clear that the rents and profits cannot be set apart for the benefit of appellant, unless it can be done under section 298. Woolley v. Holt, 14 Bush, 788; Douglass v. Cline, 12 Bush, 608; Newport & Cincinnati Bridge Co. v. Douglass, 12 Bush, 673; Nesbitt v. Wood, 56 S. W., 714, 22 Ky. Law Rep., 127; Mayfield v. Wright, 54 S, W., 864, 21 Ky. Law Rep., 1255. Therefore, in determining whether or not a vendor, in a suit to enforce the collection of his lien notes, is entitled to a receiver to take charge of the land and rent it out for his benefit, we must look entirely to section 298, and apply the provisions thereof to the facts of the case. It is stated in Collins v. Richart, 14 Bush, 621, that “courts of equity have always been reluctant to interfere with the possession of real estate by the appointment of a receiver, and they never do so unless the remedy at law is incomplete. The vendor, who conveys and puts his vendee in possession, reserving a lien for the purchase money, reserves that lien upon the land, and not upon the rents and profits. He vests the vendee with the legal title and'
The evidence exhibited in this record is not of such a character as to authorize the court to take this property from the person now in possession of it and give the rents and profits to the vendor. After carefully considering this record and the briefs of counsel, we have reached the conclusion that the evidence did not warrant the judge in appointing a receiver to take charge of the property for the years 1907 and 1908, or authorizing the appointing of a receiver for the year 1906.
Wherefore the order is affirmed on the original and reversed on the cross’ appeal.