Gaynor v. Blewett

• Decision Date: 24 May 1892
• Citation: 52 N.W. 313,82 Wis. 313
• Parties: GAYNOR v. BLEWETT ET AL.
• Court: Wisconsin Supreme Court

82 Wis. 313

52 N.W. 313

GAYNOR

v.BLEWETT ET AL.

Supreme Court of Wisconsin.

May 24, 1892.

Appeal from circuit court, Winnebago county; GEORGE W. BURNELL, Judge.

Action by Mary Gaynor against Edmund Blewett to foreclose a mortgage. From an order directing a receiver to take possession or secure the rent of the mortgaged premises from John S. Smith, a tenant of the mortgagor, the tenant and mortgagor jointly and severally appeal. Affirmed.

The other facts fully appear in the following statement by PINNEY, J.:

This action was for the foreclosure of a mortgage, and notice of the pendency of it was filed May 26, 1887. Final decree of foreclosure and sale was entered at the May term, 1891, and an order was made on the 5th of May, 1891, appointing one Hughes receiver of the mortgaged premises, directing him to take possession thereof, manage and control the same, and have, collect, and receive all the rents, issues, and profits arising or growing out of the estate, and to take charge of it during the pendency of the action, and until the further order of the court. On or about the 1st day of January, 1891, one John F. Smith entered into possession of the premises as tenant under the defendants, the mortgagors, and has held possession ever since. After the appointment of the receiver he exhibited the order of his appointment to the tenant, Smith, and demanded possession and control of the premises, and Smith refused to give possession to him, or to pay rent, or to recognize his rights in the premises. The reasonable value of the rent of the premises is alleged to be about $400 per annum. Application was made, upon these grounds, to the court for an order directing the receiver to take possession or secure the rent. The tenant, Smith, opposed the application, stating that he rented the premises from the mortgagor soon after the 1st of April, 1891, for the term of one year, for $275, which he had paid him in full therefor, and which was all it was reasonably worth, and that at the time of making such lease and paying the rent he had no notice of any intention to apply for a receiver in the action. The court ordered that Smith, the tenant, forthwith deliver possession of the premises to the receiver, or else pay or secure to be paid to him the reasonable rent for the use and occupation of said lands for the then current year, and that he attorn to said Hughes as receiver.E. S. Bragg, for appellants.

George E. Sutherland, for respondent.

PINNEY, J., ( after stating the facts).

The rents and profits of lands are not pledged by a mortgage of the lands merely, but belong to the owner of the equity of redemption, until the court, for equitable reasons, shall appoint a receiver to collect them for the benefit of the mortgagee, or directs the receiver to take possession of the mortgaged premises and the...