Hazeltine v. Granger
| Citation | 44 Mich. 503,7 N.W. 74 |
| Court | Supreme Court of Michigan |
| Decision Date | 27 October 1880 |
| Parties | HAZELTINE v. GRANGER. |
A mortgage contained provision securing to the mortgagee a right to the rents and profits, after default, and right to have receiver appointed without notice. Held, that the agreement for a receiver was ineffectual, and an order appointing one on an ex parte application, without authority should be set aside.
Appeal from superior court Grand Rapids.
McLaren & Carroll, for complainant.
H Joslin, for complainant and appellant.
Granger filed his bill to foreclose a mortgage for $3,400 due in five years from March 1, 1878, with interest at 7 per cent payable semi- annually. One instalment of interest having, as is claimed, remained unpaid the bill sets forth an election to have the whole sum become due, it being averred that this was provided for in the mortgage, as well as a fee of $50 on each proceeding to foreclose. It also avers that the mortgage secured to the mortgagee a right to the rents and profits after default, and the right to have a receiver appointed without notice. It appeared that the property was occupied as Mrs. Granger's dwelling. The superior court of Grand Rapids, where the bill was filed, made an ex parte order at once on such filing, appointing a receiver to take possession of the premises, and dispose of the rents as therein directed. Defendant at once made a motion to set aside this order, which was refused, and she appeals.
We think the court had no power to grant the order, which is unprecedented even under the old practice, both for requiring no security and for having no basis of facts to authorize it. The courts in equity have no power to appoint receivers except "when such appointment is allowed by law." Comp.Laws, � 5070. There is no statute which authorizes the court to carry out ex parte any private agreement of parties outside of the usual course, or which would render its action valid in any case if it deprived a person of property or its control without such a hearing as is required to determine the right. Under the old practice existing at a time when the possessory right was deemed covered by a mortgage a court of equity would not interfere to grant a receiver unless two conditions coincided: first, that the premises were scanty security; and second, that the mortgagor was insolvent. Brown v. Chase, Walk.Ch. 43.
Even this was regarded as contrary to public policy by our legislature, and in 1843 the old law was changed so as to secure the mortgagor in his possession until a foreclosure had become absolute. The effect of this as we have several times decided was to prevent the mortgagee from obtaining under his mortgage any interest beyond that of a security, to be enforced only by sale on foreclosure, and to debar him from any right of possession. Hogsett v. Ellis, 17 Mich. 263; Baker v. Pierson, 5 Mich. 456; Caruthers v. Humphrey, 12 Mich. 270; Crippen v. Morrison, 13 Mich. 23; Ladue v. D. & M.R. Co. 13 Mich. 380; Van Husan v. Kanouse, 13 Mich. 380; Newton v. Sly, 15 Mich. 391; Humphrey v. Hurd, 29 Mich. 44; Newton v. McKay, 30 Mich. 380; Wagor v. Stone, 36 Mich. 364.
The statute does not say that no ejectment shall lie unless there is an agreement to that...
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