Dreyspring v. Loeb

• Decision Date: 18 December 1896
• Citation: 21 So. 73,113 Ala. 263
• Parties: DREYSPRING ET AL. v. LOEB.
• Court: Alabama Supreme Court

21 So. 73

113 Ala. 263

DREYSPRING ET AL. v. LOEB.

Supreme Court of Alabama

December 18, 1896

Appeal from city court of Montgomery; John G. Winter, Judge.

Bill by Leon Loeb against A. T. Dreyspring and another to foreclose mortgages. From a decree appointing a receiver of the mortgaged property, defendants appeal. Reversed.

The bill in this cause was filed on the 29th of January, 1894, by Leon Loeb, to foreclose two mortgages in said bill set out,-one made to him by Elias Judkins and wife to secure a loan made to said Elias Judkins by Leon Loeb, and the other held by transfer and assignment from the British-American Mortgage Company. Pending the foreclosure proceedings, Elias Judkins died, and the cause was revived against his administrator, A. T. Dreyspring. The wife, Addie, was already a party defendant. More than two years after the commencement of the foreclosure suit had been begun, the complainant Loeb, filed his petition for the appointment of a receiver to take charge of the rents and profits, estimated at $150 per annum, and pay the same into court; alleging the insufficiency of the mortgaged premises to secure the mortgage debt, and the insolvency of the estate, and of Addie, the wife of the mortgagor in possession. The defendants, A. T. Dreyspring and Addie Judkins, answered the petition,-the former averring his appointment as administrator: that he had gone into possession of the estate of Elias Judkins, deceased, and had rented the same to Addie Judkins, who was in actual possession as his tenant. The answer averred further that the validity of the mortgage of complainant was denied, and that, 18 months since the grant of letters of administration not having expired, said respondent did not know whether the estate was insolvent or not, and that his control thereof should not be ousted. The defendant Addie Judkins answered, averring her possession of the mortgaged premises as a tenant of the administrator Dreyspring, and claimed that the value of the land in question exceeded the amount of complainant's debt, and denied that there was anything due on said mortgage indebtedness. The petition of complainant for the appointment of a receiver was submitted to the court on the pleadings and proof. Upon consideration of the evidence, the court granted the petition and appointed a receiver, the order of the decree appointing said receiver being as follows: "Who is here authorized, upon giving...