Whitehead v. Wooten

43 Miss. 523 | Miss. | 1871

Simrall, J.:

S. E. Whitehead, as executor of E. D. Whitehead, deceased, under the license and decree of the probate court of Coahoma county, on the 8th of October, A.D. 1860, sold and conveyed to Richard Wooten, on a credit of one and two years, a tract of land which belonged to his testator, for the sum of. $26,400. Bonds and personal security were taken for the installments, and the statutory lien expressly retained on the land. In March, 1861, Richard Wooten sold and conveyed a part of the land to George W. Parks and brother (who were sureties on his bonds), for the price of $13,200, on one and two years’ credit. The notes representing the installments, were to be credited on the bonds of Wooten to Whitehead,, execator ; they were assigned to Whitehead for that purpose, but were not to be in absolute satisfaction pro tanto of the debt to him as executor.

Richard Wooten sold a half interest in the land to his son, William H. Wooten, who sold, for the sum of $6,200, to Margaret J. Hansborough, and took a mortgage on the same and other property, to secure the payment. A bill is pending in the chancery court of Coahoma county, to foreclose this mortgage, to which Whitehead, executor, is defendant. This bill admits Whitehead’s lien on all the land, but seeks to compel Whitehead, executor, to exhaust the other land before touching that covered by this mortgage. The lands are supposed so to have depreciated in value, as not to be worth enough to pay the debt to Whitehead, executor, The sureties of Richard Wooten, on his bonds for the purchase money, are insolvent. The bill of complainant Whitehead, executor, prays for a receiver, and a foreclosure of his statutory lien.

The appointment of a receiver is a peremptory remedial measure. Its effect is to deprive the defendant in possession, temporarily at least, of his property, before final decree, settling the rights of parties litigant. If the application is made before the merits of the cause are disclosed, as before a pro confesso, or answer filed, there must be strong grounds laid. As in the case of Dowling v. Hudson, 14 Bearin, 423; and Sandford v. Sinclair, 8 Paige Rep., 373, when the defendant had withdrawn himself from the jurisdiction, for the very purpose of avoiding service of process, or the measure is taken to save the property from waste, or prevent its removal beyond the jurisdiction of the court. There must be strong and special reasons for the appointment before answer — Middleton v. Dodswell, 13 Ves., 266 — as on proof of fraud, by affidavits, or immediate danger to the property, unless at once taken in charge by the court. Vann v. Barnett, 2 Broom, Chcy., chap. 157.

As against a mortgagee, where the entire debt is due, it was said in the case of Bank of Ogdensburg v. Arnold, 5 Paige, 40, that a.receiver might be appointed to collect the rents of the mortgaged premises at any time after filing the bill, if the property is not of sufficient value to pay the mortgage debt. Unless the mortgagee has contracted that he shall have the rents and income after default made, he is not entitled to them, or to a receiver to get them in, except in case of the insufficiency of the property to meet the debt.

Notice of the motion for receiver must be served on the parties who are to be affected by it. Edwards on Rec., p. 17. It cannot well be seen how the court can take from a defendant the possession of property unless it has jurisdiction by service of process, and also by notice of motion.

The parties defendant who would be affected by the appointment of a receiver are Mrs. Margaret J. Handsborough, Geo. W. and W. T. Parks, and W. H. Wooten, and the heirs and devisees of Bichard Wooten. Geo. W. and W. T. Parks are vendees of part of the land — Mrs. Handsborough, of the half interest of the residue, bought by W. H. Wooten from his father, and the heirs and devisees of the testator own the remainder. On the 16th of October, 1869, a notice of this application was directed to W.H. Wooten, personally, and as administrator of Bichard Wooten, deceased, Geo. W. and W. T. Parks, et al., or to Messrs. Chalmers & Beid, their attorneys of record, which was served on J. B. Chalmers.

A demurrer to the original bill was filed by Messrs. Bucks & Beid, solicitors for W. H. Wooten. As to the other defendants, no'appearance was made, nor is there anything in the record showing that they were represented by solicitors, or had constituted any one attorney to represent and defend their interest in the suit. It follows, then, that the parties in interest had no notice of application for the receiver. Such notice is required by statute. Rev. Code, art. 74, p. 552. The appellant has not appeared in this court by counsel and indicated the errors complained of.

Let the decree of the chancellor be affirmed.