82 Iowa 307 | Iowa | 1891
On February 11, 1887, the defendants, John C. Mitchell and Martin D. Mitchell, executed to plaintiff: their promissory note for the sum of fifteen thousand dollars, payable on February 11, 1892, with interest at the rate of seven and a half per cent, per annum, payable semi-annually. They also executed a mortgage to the plaintiff upon' a farm of five hundred and four acres, to secure the payment of the said sum and interest. The mortgage contains many provisions not ordinarily found in such instruments in this state. It is verbose and replete with repetition, the only effect of which is to increase the fees of the county recorder. The granting part of the instrument contains the following provision : “To have and to hold the premises above described, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, and the rents, issues, products and profits thereof with the second party, his heirs and assigns forever.” It provides for the payment of taxes by the mortgagors, and for the insurance of the
A special execution was issued for the sale of the; farm, and, after two adjournments of the sale for the want of bidders, the land was sold on November 16, 1889, to the plaintiff, for fifteen thousand, eight hundred; and sixty-one dollars, leaving a balance of one thousand' dollars of the judgment unpaid. Thé plaintiff did not cause general execution to issue for such balance, as ordered by the decree, but, on November 26, the receiver, named in the decree.qualified as such. ;
The question to be determined is, was the plaintiff entitled to the appointment of a receiver, and to the rents and profits of the land during the redemption period? The appointment of a receiver is one of the extraordinary remedies which may, in a proper case, bel resorted to by a creditor as an aid to the collection of a ¡ debt. It operates as a summary method, of seizing and; holding property, and is usually attended with great! expense and loss to the parties. A party seeking the remedy should make such a showing as to fairly entitle him thereto. We have set out certain parts of the mortgage that it may be seen that it is not contemplated thereby that a receiver -should be appointed after a foreclosure. The mortgage expressly provides that the plaintiff may take possession by action of forcible detainer, if necessary, but that such possession “shall in no manner prevent or retard the second party (the plaintiff) in the collection of said sums by foreclosure or otherwise.” There is no express provision for the appointment of a receiver at any time. The fact that the “tenements, hereditaments and appurtenances, and
The order appointing a receiver is reversed.