Ray v. Carlisle

125 Ga. 316 | Ga. | 1906

Cobb, P. J".

(After stating the foregoing facts.) The reason urged for the appointment of a receiver in this case is, that there is no fire insurance on the building, and, should the same be destroyed by fire pending the litigation, the land alone would not be of sufficient value to pay the indebtedness claimed b3r the plaintiff to be due him. Ity reason of 'this state of facts, it is contended that the court should' have appointed a receiver to take charge of the property, and impound the rents, for the protection of the plaintiff. Creditors can not force a debtor to take out fire insurance for the protection of his property, so that they may have security for their claims. And if their claims were such that the property were directly chargeable with them, and they were liens upon the property, its destruction by fire is too remote a contingency to warrant a court in exercising its extraordinary power of wresting the property from the owner and placing it in the charge of a receiver. It is claimed that the right to have a receiver' appointed is given under that section of the Civil Code which reads as follows: “A court of equity may appoint a receiver to take possession of, and hold subject to the direction of the court, any assets charged with the payment of debts, where there is manifest danger of loss,' or destruction, or material injury to those interested.” §4904. We do not by any means undertake to declare that the claims of the plaintiff are such that the property in question is charged with their payment. From the record before us it does not clearly appear that the plaintiff has a lien for any of them. The evidence is such tliat the judge could have found that the plaintiff had no lien of any character. But granting that the plaintiff had a lien for all of his claims, there is no such manifest danger of the loss or destruction of the property as to authorize the appointment of a receiver. Of course there can be no loss of the land. It stands to discharge any judgment obtained by the plaintiff against the defendant, and the pendency of the suits practically prevents a disposal of it by the defendant. We think there is a very clear distinction between this ease and those of Bell v. Dawson Grocery Co., 120 Ga. 628, Sanford v. Fidelity and Guaranty Co., 116 Ga. 689, and Sims v. Cordele Ice Co., 119 Ga. 597, which were relied on by the plaintiff in error. Under the view we have taken, it is not necessary to determine whether the claims of. the People’s Home Purchasing Company, assigned to the plaintiff, were equitable liens against the property. The court properly refused the receivership. Any error that may have been committed in the admission of evidence is not of such character as to require a reversal of the judgment. Judgment affirmed.

All the Justices concur.