Couper v. Shirley
| Decision Date | 15 June 1896 |
| Docket Number | 271. |
| Citation | 75 F. 168 |
| Parties | COUPER v. SHIRLEY et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
On the 26th day of March, 1894, William Thompson, Jr., brought suit in the circuit court of Oregon to foreclose a mortgage on certain farming lands, given by James Q. Shirley and his wife to secure the payment of two promissory notes, each for the sum of $10,000. Several subsequent lien claimants were made parties defendant. In this mortgage it was expressly stipulated 'that, in case a bill to foreclose said mortgage shall be filed, the court may, on motion of the mortgagees, or their assigns, appoint a receiver to collect the rents profits arising out of said premises during the pendency of such foreclosure, and until the right of redemption expires, and that such rents and profits shall be applied in payment, pro tanto, of the amount due. ' On the same day, upon motion of complainant's counsel pursuant to the foregoing stipulation, the court appointed E J. Couper, appellant herein, receiver of the rents, profits and issues of the lands described in the bill of complaint. Thereafter, on July 25, 1894, on motion of the defendants J J. Balleray and J. L. Rand,-- it appearing to the court that E. J. Couper was a party to, and had an interest in the result of, the suit,-- an order was made removing him as receiver. Couper held a second mortgage for $2,500, and appeared by cross bill to have it foreclosed. This mortgage contained a similar stipulation as to the right to have a receiver appointed. On October 16, 1894, a decree of foreclosure was entered; and on the 7th of December, 1894, the master in chancery sold the lands, with the result that there was still due on Couper's mortgage the sum of $499. E. J. Couper in the meantime entered upon the duties of receiver, seeded the lands in the spring of 1894, and continued to act as receiver after the order removing him from such receivership, harvested the crops, and marketed the same, and on April 13, 1895, filed his final report and accounts, showing a net result of his acts as receiver of $1,017.93. On May 2, 1895, defendants Balleray and Rand filed their exceptions to this report, showing that James Q. Shirley on December 14, 1894, had mortgaged, transferred, and assigned all of said crops to them to secure the payment of $10,000, then due, and claiming that the order appointing a receiver was made without authority of law; that complainant be required to pay the expenses of such receivership; and that it be decreed that the proceeds in the hands of the receiver go to petitioners Balleray and Rand. The matters in controversy were referred to the master in chancery, who reported that the receiver's account was true, correct, and accurate, and recommended that the account be approved, and that the sum of $600 be allowed the receiver as his compensation, and that the sum of $100 be allowed as reasonable counsel fees for the receiver. The master further found that the mortgage to the defendant Couper was a mortgage of the rents and profits of the property described in the bill, as well as a mortgage of the real estate. He further recommended that;he compensation of the receiver and his attorney fees be paid to defendant E. J. Couper, in part satisfaction of his claim. The court disapproved the master's report and recommendations, and ordered the defendant Couper to pay over all moneys in his hands to the defendant mortgagor of his assignee.
John H. Woodward and Charles H. Woodward, for appellant.
J. J. Balleray and Henry Ach, for appellees.
Before McKENNA and ROSS, Circuit Judges, and HAWLEY, District Judge.
HAWLEY District Judge, after stating the case as above, .
It must be borne in mind that the appointment of Couper as a receiver was not made by virtue of any of the established general principles of equity, which, when alleged to exist, would authorize a court of equity to appoint a receiver, but was made solely in pursuance of the stipulation contained in the mortgage. The sole question for our consideration is whether such a stipulation, of itself, authorized the court to make the appointment, under the laws of Oregon. The statute of the state of Oregon provides that:
'A mortgage of real property shall not be deemed a conveyance so as to enable the owner of the mortgage to recover possession of the real property, without a foreclosure and sale according to law.' 1 Hill's Ann.Laws Or. (2d Ed.)p. 383,§ 326; Gen. Laws Or. 1845-64, p. 228, Sec. 323.
This...
To continue reading
Request your trial
-
Atlantic Trust Co. v. Dana
...... question. The cases of Teal v. Walker, 111 U.S. 242,. 4 Sup.Ct. 420, 28 L.Ed. 415, and Couper v. Shirley, . 21 C.C.A. 288, 75 F. 168, relied upon by counsel for the. judgment creditors, presented controversies growing out of. mortgages of ......
-
Investors Syndicate v. Smith
...permanent improvements which he installs."15 With respect to appointment of a receiver in a mortgage foreclosure suit, in Couper v. Shirley, 9 Cir., 75 F. 168, 170, it was held that a mortgagor and mortgagee have no power to bind the courts by a stipulation for the appointment of a receiver......
-
Bowersock Mills & Power Co. v. Joyce
...v. Leckie, 3 Cir., 39 F.2d 318, 321; Fulp v. McCray, 8 Cir., 21 F.2d 951, 952; McIntosh v. Ward, 7 Cir., 159 F. 66, 68, 69; Couper v. Shirley, 9 Cir., 75 F. 168, 171; State ex inf. Hadley v. People's, etc., Bank, 197 Mo. 605, 95 S.W. 867, 869; St. Louis, K. & S. R. Co. v. Wear, 135 Mo. 230,......
-
Smith v. Grilk
...by the mortgage the mortgagor would deliver to the trustee the possession of the mortgaged premises. See, also, Couper v. Shirley et al., 75 F. 168, 21 C. C. A. 288. In Norfor v. Busby et ux., 19 Wash. 450, 53 P. 715, the Washington statute was held to be expressive of the public policy of ......