24 S.E. 360 | N.C. | 1896
The motion for the appointment of a receiver was refused, and the plaintiff excepted and appealed to the Supreme Court.
The material facts appear in the opinion of Associate Justice Clark.
This action is brought for the foreclosure of a mortgage upon a newspaper, together with its press, type, subscription list, etc., including its good will. The defendant, while admitting that the mortgage had been executed, denies that there is any balance due on the same, and alleges on the contrary that the plaintiff is indebted to him, and asks for an account and a cancellation of the mortgage. Under these circumstances the court not only would not (603) *370
decree a foreclosure till the balance due, if any, was ascertained, but would enjoin any attempt to sell under a power of sale in the mortgage until the account had been stated. Purnell v.Vaughan,
In the present case there was no request by the appellant that the judge should find the facts, and we must take them to be as set out in the affidavits filed by the appellee. On turning to the affidavits we find it testified by the defendant, and not denied by the plaintiff, that to appoint a receiver "would be positively to destroy absolutely its value and render the property in controversy in this action worthless as a newspaper." Owing to the peculiar nature of this species of property, and the important part of its good will and the capacity and policy of the editor, especially if a man of talent and popularity and of strong individuality, have in giving it value, it can be readily seen that appointing a receiver to take charge of the paper, with power to change the editor or control its policy, might and (605) in many case would destroy all its value, beyond the slight value attached to the possibly well-worn type and press. To appoint a receiver, even of realty, or of a railroad, or the like, is to be done with caution (Lumber Co. v. Wallace,
It is true that the plaintiff alleged that the defendant was insolvent, and this the defendant admitted, but there is no allegation that the defendant intends to run off with or conceal or destroy the property, and the only possible bearing which the allegation of insolvency could have is in connection with the other allegation (which is found against the plaintiff), that the property is depreciating, and thus the security is being impaired. The allegation of the defendant's insolvency and poverty, taken alone, is not sufficient ground to take the property out of his hands, which he avers is his own, free from any legal claim of the plaintiff, especially when the effect of the judge's ruling is, as we have seen, that the security is not being impaired, but in truth has doubled in value and is steadily increasing in worth, and that, in fact, to appoint the receiver would be really to destroy the chief value of the property. 20 Am. and Eng. Encyc., 39, and notes 1 and 2. Upon a proper state of facts a receiver can be appointed of a newspaper, as well as of other property, but upon the peculiar state of facts found in this case to appoint a receiver would be a great injury to the defendant and no benefit to the plaintiff, and the judge below properly left the property in the hands of the defendant until a jury could pass upon the controverted issue of fact, whether the plaintiff has any sum due him for which he can ask a decree of foreclosure.
No error.
Cited: Shoaf v. Frost,
(607)