54 So. 603 | Ala. | 1911
The averments of the bill show that the appellant Phillips executed a mortgage to the Birmingham Industrial Company, appellee, embracing the real and personal property described in the bill, and that there was a foreclosure of the mortgage under the power contained in it, and at the foreclosure sale the appellee became the purchaser. The appellee then, made demand for possession on Phillips, the mortgagor, and H. C. and Emma Cristlieb, the mortgagor’s tenants, who
No appeal was prosecuted from the order of appointment of receiver, and the receiver took possession of the property and collected the rents. The suits at law, both in ejectment and detinue, proceeded to final judgment in favor of the plaintiff, the appellee-here and complainant in this bill. Appropriate writs were issued on the judgments at law, and on the petition of the complainant the chancery court allowed them to be served upon the receiver, and under these writs the possession of the real and personal property was delivered the complainant.
As to the appointment of a receiver in the case on the bill and the facts as presented, the case of Mortgage Company v. Turner, 95 Ala. 272, 11 South, 211 strikingly analogous to the one at bar, we think, is conclusive of the correctness of the chancellor’s ruling. As against the mortgagor and his tenants holding under him, the complainant here, plaintiff in action of ejectment at law, was the owner of the real estate, with immediate right of possession, and entitled to the rents and to have the same secured to him against waste or loss. The cases cited and relied on by appellants were those where the bill was for a foreclosure of the mortgage in equity, and are differentiated both on facts and principle from the case here. In those cases the mortgage was regarded as a security for the mortgage debt, and the value of the mortgage property was in question; whereas here the mortgagee has become the absolute owner of the property mortgaged, and the question of its value is immaterial in the matter of the appointment of a receiver.
We are unable to see that any error was committed in the appointment of a receiver, or in the final disposition of the case, and the decree appealed from will be affirmed.
Affirmed.