60 Neb. 476 | Neb. | 1900
This action was instituted by the Northwestern Mutual Life Insurance Company against the appellants to foreclose a real estate mortgage upon business property in the city of Lincoln. At the commencement of the suit, William P. McLaren, in pursuance of a stipulation of the parties, was appointed receiver, and entered immediately upon the discharge of his trust. No fault is found with the decree of foreclosure, and the only question brought here for decision arises on an exception to an'order of the court confirming the receiver’s report. It appears that the mortgaged property had been rented by the owner, the Lincoln Land and Improvement Company, to J. H. Harley and that the lease, by its terms, was to run until 1899. It also appears that, at Harley’s request, and without notice to any one except Stephenson, the receiver’s agent, one of the judges -of the district court for Lancaster county, made, at chambers, the following order:
“It having been made to appear to the undersigned one of the judges of said court by petition duly filed and proofs made, that J. H. Harley, the tenant in possession of the first floor and basement of the building situated on eighty feet of the north end of lot 12, in block 56, in the city of Lincoln, and the.areaway about said building, is unable to pay as rent for said premises the sum of $200.00 per month, and it further appearing to the court
“It is therefore ordered that the rent from said premises be reduced to the sum of $150.00 per month for a period of six months from the first day of September, 1896, until a further order shall be made in the premises, and the receiver is directed to collect the reduced rent of $150.00 per month, from said tenant.
“Witness my hand, this 21st day of September, 1896.
“Chas. L. Hall, Judge”
Acting on the assumption that the foregoing order was valid, the receiver collected, and in his report accounted for, rent from Harley after September 1, 1896, at $150 a month. It is not insisted by counsel for the appellee that the order made by Judge Hall at the instance of Harley, conferred upon the receiver any authority to reduce the rent; but it is contended that the approval of McLaren’s report by the court was the legal equivalent of a prior adjudication, authorizing an abatement of rent. The money due upon the lease belonged to the landowner, and it is doubtful whether the court might, under any circumstances, abrogate his contract and order a remission of arrears, or a reduction of the amount which the tenant had agreed to pay. It has been said that the authority of the court with respect to rents, in cases of this kind, is nothing more than a power to collect the amount due according to the terms of the lease. Robinson v. Shearer, Hayes & Jones Rep. [Irish], 799; Commissioners v. Harrington, 11 L. R. [Irish], 127; Ficener v. Bott, 47 S. W. Rep. [Ky.], 251. Whether this is a correct statement of the law we do not now decide. The remission of rent in this case was unwarranted, conceding that the authority exists whenever property is sequestered for the benefit of a mortgagee. Mr. Harley was solvent, and there is in the record no evidence which would justify the conclusion
Judgment accordingly.
