179 Iowa 509 | Iowa | 1916
Reciting these tacts, the petition alleged that, in making these transfers, decedent was of unsound mind, and induced so to do by tlie undue influence of defendant, and prayed that the deeds and assignments be set aside, and each daughter be decreed entitled to one sixth of the property; and that, in event this relief be denied, plaintiffs be „ decreed entitled to the remainder in the 40 acres upon the expiration of the defendant’s life estate therein. The answer put in issue the allegations of mental incapacity and undue influence. Thereupon, plaintiffs applied for the appointment of a receiver, basing such application on the allegations of the petition, and averring that administrators had been appointed, who had filed inventory and given notice of their appointment; that, besides said conveyances, decedent had transferred to defendant all his notes and mortgages, amounting to -$5,000 or $6,000, and other personal property, so that apparently nothing remained to administer, and a contest on the will left by decedent would be of no advantage; that defendant had squandered the assets which rightly belong to the estate; that the pleadings on their face showed more than a probable right to recover, arid the best interests of the heirs would be served if a receiver were appointed to take charge of the personal estate and the rents and profits of the land until the cause should be tried. It was further averred that defendant was blind; that the will of decedent was void because of his mental unsoundness and her undue influence, and for that there was no property subject to its operation.
By way of petition of intervention, the administrators joined in the application for the appointment of a receiver. The defendant put in issue the allegations, and admitted that she had been blind since 11 years of age, and each side filed affidavits. From these it appeared that, aside from
If upon the entire record this is a matter of much doubt; the application will be denied. Owen v. Homan, 4 H. L. Cas. 997; Bank of Florence v. United States S. & L. Co. 104 Ala. 297 (16 So. 310) ; Tila v. Grand Island E. L. I & C. S. Co., 68 Neb. 222 (94 N. W. 136, 97 N. W. 613).
As seen, there was no sufficient showing that injury to the property was likely or that any rents or profits therefrom might be lost. The matter of appointing a receiver pendente lite rests, to a considerable extent, in the discretion of the court;,but this is a legal discretion, and must he exercised in view of all the circumstances of the 'case and the delicacy of the function performed.
“As against a defendant in the possession and enjoyment of property which is the subject-matter of the litigation, equity always proceeds with extreme caution in appointing a receiver.” High on Receivers (4th Ed.), Section 19.
The decisions fully sustain the text. As forcibly said in Crawford v. Ross, 39 Ga. 44:
“The high prerogative act of taking property out of the hands of one and putting it in pound, under the order of a judge, ought not to be taken, except to prevent manifest wrong, immediately pending.” ,
Whether a receiver shall be appointed in such a case as this depends on whether, from the showing made, it can be said: (1) That plaintiff probably will succeed in the suit; and (2) that the property is likely to be injured if left in the hands of the person who may be in possession, or the rents and profits lost. Neither finding was warranted in this case, and we are of opinion that the court erred in appointing a receiver.
“If the Avriting called a deed, dated August 5, 1880, had been an ordinary absolute conveyance of all the grant-