140 Ga. 808 | Ga. | 1913
(After stating the foregoing facts.) “Receivers are not appointed as matter of right, but to preserve rights.” “The power of appointing receivers and ordering injunctions should be prudently and cautiously exercised, and except in clear and urgent eases should not be resorted to.” Civil Code, ■§ 5477. The principal ground on which courts of equity are called upon to lend their extraordinary aid by the appointment of receivers over mortgaged property is the inadequacy of the security for the payment of the mortgage indebtedness. This inadequacy consists of two elements, viz., the insufficiency of the mortgaged premises per se as a fund for the payment of the debt, and the insolvency of the mortgagor or other person primarily liable for the indebtedness, whose duty it is to make good any deficiency in the security. Stated in general terms, the well-established rule, deducible from the clear weight of authority, is, that in all cases where the rents of the property are not specifically pledged as security for the debt, to entitle the mortgagee to a receiver for the mortgaged premises, and for the rents and profits, he must show, first, that the property itself is an inadequate security for the debt with interest and costs of suit; and, second, that the mortgagor, or other person who is personally liable for the payment, is insolvent, or beyond the jurisdiction of the court, or of such doubtful responsibility that an action against him for the deficiency would prove unavailing. High on Receivers, § 666. In the application of this
In view of the evidence, showing the value of the mortgaged property so largely in excess of the valid indebtedness secured by the mortgage, the mere fact that the mortgagor suffered the State, county, and municipal taxes to the amount of $366.13 to accumulate and remain unpaid did not authorize the appointment of a receiver. It was not made to appear that the security of the mortgagees would manifestly be impaired, even if a portion of the mortgaged property should be sold for taxes. It was not shown that the property was' of such character that the executions could not be levied upon some separable part thereof which could be sold without interrupting the operation of the mill.
Judgment reversed.