Waldron v. First National Bank, No. 10,271

No. 10,271 | Neb. | May 16, 1900

Sullivan, J.

This action was commenced in the district court of Cass county by the First National Bank of Greenwood to foreclose two real estate mortgages. At plaintiff’s instance an order was made, before judgment, appointing a receiver on the ground that the mortgaged property was probably insufficient -to discharge the mortgage debt. To secure a reversal of this order, the Waldrons, who were defendants below, prosecute error to this court. The assignments in the petition in error are as follows: “The court erred in finding ‘that the property in controversy (being the real estate herein in this petition described with all its improvements) is inadequate security for the debts of the plaintiffs herein and the mortgages and judgments prior to plaintiff’s said lien. 2d. The court erred in finding the defendants liable for deficiency judgment have not sufficient property over and above their debts and exemptions to pay the probable deficiency judgment in the case. 3. That the court erred in finding for the defendant in error and in appointing a receiver for the plaintiffs in error’s property when the evidence and proof in said cause show that the owner of the mortgaged premises is solvent and that the premises are adequate security for the payment of the plaintiff’s demand against the same, and that no grounds exist for the appointment of said receiver.”

By the foregoing specifications three points are presented for decision. They are these: (1.) Is the evidence sufficient to warrant the conclusion of the trial court that the plaintiff’s security is probably inadequate? (2.) Does the evidence show that the defendants, who are personally liable for the debt, are insolvent? (3.) May a receiver be appointed in a foreclosure suit, if the debtor is financially responsible? Our answer to the third question will render a decision of the second unnecessary. By section 266 of the Code of Civil Procedure it is provided that the district court, or a judge thereof, may appoint a receiver in an action brought to foreclose a mortgage “when the mortgaged property is in danger of being lost, removed, or materially injured, or is probably insufficient to discharge the mortgage debt.” Construing this statutory provision it was held in Philadelphia Mortgage & Trust Co. v. Goos, 47 Nebr., 804, 815, following Jacobs v. Gibson, 9 Nebr., 380, that a mortgagee who brings suit to foreclose his mortgage “is entitled to Imw his debt satisfied out of the property pledged as security for its payment, without being forced to resort to other remedies he may have.” This being the established rule it is altogether immaterial whether a deficiency judgment against the Waldrons would be collectible.

With respect to the first question raised by the petition in error, and discussed at length by counsel for both parties, we deem it sufficient to say that the evidence is substantially conflicting, both as to the value of the property and the amount of the liens and incumbrances against it. The greater number of witnesses support the contention of appellants that the security is adequate; but questions of fact, and especially questions of value, are not to be decided by mere count of- witnesses. Recent cases illustrating this principle are Nebraska Loan & Building Ass’n v. Marshall, 51 Nebr., 534, and Lincoln Land Co. v. Phelps County, 59 Nebr., 249. In passing upon plaintiff’s claim that its security was probably inadequate, the district court was vested with a discretion which, in the absence of a satisfactory showing to the contrary, we will presume was wisely exercised. Jacobs v. Gibson, supra.

The order appointing the receiver is supported by the testimony of a considerable number of witnesses and should be

Affirmed.