Hakes v. North
| Decision Date | 07 April 1925 |
| Docket Number | 36258 |
| Citation | 203 N.W. 238,199 Iowa 995 |
| Parties | G. T. HAKES, Appellee, v. FRANK L. NORTH et al., Appellees; CITY SAFETY DEPOSIT COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.--TOM C. WHITMORE, Judge.
SUIT to foreclose a first mortgage upon a farm now owned by the defendant North. Plaintiff's mortgage was for $ 40,000 and is conceded to be a first mortgage upon the farm. Decree was entered accordingly. A receiver was appointed, upon the application of plaintiff. The plaintiff, through the receiver, claims the rents and profits of the farm for the year 1923. This claim was resisted by the defendant City Safety Deposit Company, which claims such rents under an assignment of the lease for such year. The court below awarded the rent to the plaintiff, and the defendant City Safety Deposit Company has appealed.
Reversed.
W. A Ehlers and Walter S. Stillman, for appellant.
C. E Swanson, for appellee.
The issue presented for our consideration was made in the court below by the respective motions of the parties. A stipulation was entered that the allegations of the various pleadings should be taken as the equivalent of affidavits, and should be received as such in support of the respective contentions of the parties on their motions. Plaintiff's mortgage was made in March, 1919, and covered a farm of 262 acres. The mortgage was acquired by plaintiff from the mortgagee. The land was conveyed, subject to the mortgage, by the mortgagors, and the title passed through several mesne conveyances, and came to the defendant North sometime in the year 1920. In the conveyance to North, he assumed the plaintiff's mortgage. North rented the land for the years 1921, 1922, and 1923, by successive renewals, to the defendant J. A. Johnson, who, during such period, farmed the land under said lease. The rents consisted partly of cash and partly of crop share. North pledged these rents for borrowed money, and assigned the lease to the assignor of the defendant City Safety Deposit Company, for each of such years. The plaintiff brought his foreclosure suit on November 3, 1923. The plaintiff claimed the rents for 1923, under the provisions of his mortgage, and obtained the appointment of a receiver for the purpose of collecting the same. The defendant City Safety Deposit Company claimed the rents under the pledge and assignment from North, which was made long prior to the beginning of the foreclosure suit. This is the controversy presented for our decision. Plaintiff's mortgage contained the following provision:
"It is expressly agreed and understood by the parties hereto, that upon the commencement of any suit to foreclosure this mortgage, or at any time thereafter and prior to the expiration of the time for redemption from sale of said premises on foreclosure, any court of competent jurisdiction, upon the application of the mortgagee, its successors or assigns, or the purchaser at such sale, may at once and without notice to the mortgagors, their heirs or assigns, or any person claiming under them, appoint a receiver for said premises, to take possession thereof, to enter upon, cultivate, operate, and lease the same, to collect the rents, issues, income and profits of such premises during the pendency of such foreclosure and until the time to redeem the same from execution sale shall have expired, and out of the same to make necessary repairs and keep the premises in proper condition and repair during such period, and to pay all taxes and assessments, accrued or accruing between the commencement of such foreclosure suit and the expiration of the time of redemption, unredeemed tax and assessment sales remaining unpaid, at or prior to the foreclosure suit to pay insurance premiums necessary to keep premises insured in accordance with the terms of this mortgage and the expense of such receivership; and, at the option of the mortgagee, its successors and assigns, to have any balance remaining applied upon the debt hereby secured."
The plaintiff's claims are predicated upon the foregoing.
For the purpose of this question, we think that defendant North should be deemed to be standing in the shoes of the original mortgagor, inasmuch as he expressly assumed the mortgage. We have held heretofore that such a provision in a real estate mortgage as is above set forth does not operate as a present lien upon the rents, profits, or growing crops of the mortgaged land. Such provision is a part of the remedy provided for the collection of the mortgage, and operates upon the personalty only upon and after the commencement of the foreclosure, and as a part of the procedure. First Nat. Bank v. Security Tr. & Sav. Bank, 191 Iowa 842, 181 N.W. 402; Farmers & Merch. State Sav. Bank v. Kriegel, 196 Iowa 833, 195 N.W. 624; Swan v. Mitchell, 82 Iowa 307, 47 N.W. 1042; Paine v. McElroy, 73 Iowa 81; Stetson v. Northern Inv. Co., 101 Iowa 435, 70 N.W. 595. See, also, note to Sullivan v. Rosson, 4 A.L.R. 1400, at 1405.
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