47 Neb. 804 | Neb. | 1896
This is a proceeding in error to review the order of the district court refusing to appoint a receiver to collect the rents and profits of the mortgaged premises, pending an appeal to this court from an order confirming a sale. On the 23d day of June, 1894, a decree of foreclosure of the mort
There is no controversy over the facts in this •case; but the question is whether sufficient facts ■existed at the time the application was presented to the- court below to authorize the appointment of a receiver. Section 266 of the Code of Civil Procedure provides for the appointment of a receiver in either of the following cases: “Second — ■ In an action for the foreclosure of a mortgage,
Our attention has been called to section 55„ chapter 73, Compiled Statutes, which provides:: “In the absence of stipulations to the contrary,, the mortgagor of real estate retains the legal title and right of possession thereof.” It is arguedl that, under the foregoing provision, the mortgagor, except as otherwise stipulated in the mortgage, is entitled to the rents and profits, and the possession of the mortgaged premises until final confirmation of the sale. The mortgage under which the foreclosure in this case was made is not before us; hence we are not advised of its pro
It is insisted that no power exists to appoint a receiver after decree under the second subdivision of said section 266, but that it merely authorizes one to be appointed while the case is pending and
It is argued by the defendant that the plaintiff is protected against any possible damages by reason of the non-payment of the taxes, by the supersedeas bond given in the appeal taken from the order of confirmation. This bond is conditioned that appellant “will not during the pendency of such appeal commit, or suffer to be committed, any waste upon such real estate.” Authorities are cited to the effect that non-payment of taxes constitutes waste. If we accept the reasoning of the decisions relied on by counsel, the defendant Iszard had committed waste upon the mortgaged premises, and it is clear that the commission of waste is sufficient ground to authorize a court of equity to appoint a receiver to take possession of the mortgaged property pending an appeal. Even
It was suggested on the argument that the real estate in controversy was Iszard’s hqmestead. Whether in any case a receiver can be appointed to take possession of the mortgagor’s homestead pending foreclosure proceedings is unnecessary to decide, since that question is not presented by this record.
The order refusing a receiver is reversed, and the cause remanded with directions to the district court to appoint some suitable person receiver to collect the rents and profits of the mortgaged premises.
Reversed and remanded..