Justus v. Fagerstrom
| Decision Date | 27 December 1918 |
| Docket Number | 21,243 |
| Citation | 170 N.W. 201,141 Minn. 323 |
| Parties | PHILIP C. JUSTUS v. CARL H. FAGERSTROM AND OTHERS |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county to foreclose a second mortgage upon certain real estate and to appoint a receiver of the mortgaged premises pending foreclosure. An order requiring defendants to show cause why a receiver pendente lite should not be appointed, Haupt, J., was discharged, and the application denied. From the order denying the application, plaintiff appealed. Affirmed.
Mortgage -- appointment of receiver -- adequacy of security.
Where the security is adequate, the mortgagor solvent, taxes and insurance paid to date and the property well cared for, the court will not appoint a receiver of the mortgaged property on foreclosure of a second mortgage because of a few months' default of one installment of interest and one of principal, due on the first mortgage. Failure to pay interest due on a prior mortgage is a species of waste, but it will justify the appointment of a receiver pending foreclosure only where it endangers the adequacy of the security.
Harris Richardson, for appellant.
Charles A. Dalby, for respondents.
Plaintiff commenced this action to foreclose a second mortgage on real estate. He made application for the appointment of a receiver pending foreclosure. The application was denied and plaintiff appeals. The matter was heard on the complaint and on affidavits. There is some conflict in the affidavits. The court made no findings of fact but the affidavits would sustain a finding of the following facts: That the first mortgage was originally $30,000 and the second $15,000; that the amount due on both mortgages at the time foreclosure was commenced was less than $45,000; that the property is worth more than $60,000; that the mortgagor in the second mortgage is perfectly solvent; that the present owner of the property not the mortgagor in either mortgage, has kept the property in a good state of repair and has kept it fully tenanted that he has paid taxes to date and has kept the property well insured and paid the insurance premiums; that he had made no default, other than on plaintiff's mortgage, except that an installment of interest on the first mortgage was about two months past due, an installment of $1,000 of principal about eight months past due; in other words, that the security is adequate, the mortgagor solvent, taxes and insurance paid to date, and the property well cared for. ...
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