Cooper v. Marsh
| Decision Date | 09 February 1926 |
| Docket Number | 37042 |
| Citation | 207 N.W. 403,201 Iowa 1262 |
| Parties | J. R. COOPER, Appellee, v. H. L. MARSH et al., Appellees; J. S. HAMM, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED JUNE 21, 1926.
Appeal from Taylor District Court.--A. R. MAXWELL, Judge.
ACTION to foreclose a real estate mortgage. A receiver was appointed, at the instance of the plaintiff. The trial court decreed a foreclosure of the mortgage, appointed a receiver to take possession of certain personal property then on the mortgaged premises, and established the claim of the intervener. The defendant Hamm, who was the grantee of the mortgagor, appeals, and the plaintiff files a cross-appeal. The material facts are set out in the opinion.--Affirmed in part; reversed in part.
Affirmed in part; reversed in part.
Stipe Davidson & Davidson, for appellant.
R. T Burrell and Wisdom & Kirketeg, for J. R. Cooper and F. C. Cooper, appellees.
O. C. Greene, for Page County State Bank, intervener, appellee.
FAVILLE, J. DE GRAFF, C. J., and STEVENS and VERMILION, JJ., concur.
H. L. Marsh was the owner of 249 acres of land. On March 1, 1921, Marsh and his wife gave to the plaintiff in this action a mortgage for $ 12,000 on said land. The mortgage was due March 1, 1925. It was subject to a first mortgage of $ 7,000 on 160 acres of the land and subject to a mortgage of $ 7,200 on 89 acres of the land. On February 14, 1923, Marsh conveyed the 160 acres to the defendant Hamm. The conveyance was subject to the plaintiff's mortgage, but Hamm did not assume or agree to pay the mortgage, under the terms of the conveyance. Hamm rented the 160 acres to a tenant named Philpott, for the term of one year, the lease expiring March 1, 1924. The terms of the lease provided for the payment of $ 400 cash rental and the delivery to Hamm of one half of the crop raised on the rented premises. The $ 400 cash rent was represented by the note of Philpott to the defendant Hamm. It is the claim of the Page County State Bank, as intervener, that Hamm transferred the said note of $ 400 to Stipe, Davidson & Davidson, in payment of an attorney fee which he owed to said parties, and that said attorneys transferred said note to the intervener bank for a valuable consideration. Under the terms of the mortgage, an interest payment was due thereon on March 1, 1924, which was not paid. The mortgage contained an acceleration clause; and on March 15, 1924, the plaintiff instituted this action for the foreclosure of said mortgage, and in said action asked for the appointment of a receiver to take charge of the rents and profits of the mortgaged premises. A temporary receiver was appointed, and upon final decree the receivership was made permanent. The crop share of the rental of said premises, under said lease, consisted of 1,050 bushels of corn, which were set apart to the landlord, Hamm, and placed in a crib upon the mortgaged premises. By stipulation of the parties the corn was sold and converted into money, and the proceeds held in lieu of the corn itself. By the terms of the decree it was adjudged that the plaintiff had, under his mortgage, a lien on the corn in the crib, which was raised on the premises during the year 1923, and that the receiver was entitled to possession of said corn, or the proceeds thereof, to apply upon the amount due on the plaintiff's mortgage. As to the rental note of $ 400, the court decreed as follows:
"The plaintiff has no claims upon the note now in the hands of the intervener, the Page County State Bank, and it owns the same, and also owns an interest and such interest in the written lease signed by defendants Hamm and Philpott, necessary for the enforcement of the collection of said note; and when said note is paid, either by Philpott or the receiver, the Page County State Bank shall make an assignment of said lease to the receiver."
The court ascertained the total amount due on said mortgage, and decreed foreclosure of the same against the premises, Personal judgment was rendered against the defendant Hamm for the costs of said action, including an attorney's fee.
I. The mortgage in question contained the following clause:
The decree provides that the temporary appointment of the receiver is made permanent, and that the plaintiff has a lien upon the corn grown upon the mortgaged premises in the year 1923 and still remaining thereon, and directs the receiver to apply the proceeds of said corn upon the mortgage indebtedness.
The question of the appointment of a receiver to take possession of mortgaged premises and collect the rents and profits therefrom and apply the same upon the mortgage indebtedness is discussed by this court in the case of Young v. Stewart, 201 Iowa 301, 207 N.W. 401. In said case the authorities are collected, and it is unnecessary to repeat the discussion therein contained or to again review the cited authorities.
The only claim of a right to the appointment of the receiver in the instant case is because of the terms and provisions of the mortgage as above set forth. Even under the terms of the mortgage the plaintiff had no lien on the rents and profits until foreclosure proceedings were...
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