Kistler Et At v. Wilmington Dev. Co, 505.
| Citation | 172 S.E. 413,205 N.C. 755 |
| Decision Date | 24 January 1934 |
| Docket Number | No. 505.,505. |
| Parties | KISTLER et at. v. WILMINGTON DEVELOPMENT CO. et al. |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Guilford County; Stack, Judge.
Suit by Mary W. Kistler, trustee, and others, against the Wilmington Development Company and others, wherein the Ham Estates, Inc., filed a petition. From a judgment denying the petition, petitioner appeals.
Affirmed.
The Wilmington Development Company, a corporation, issued certain shares of preferred stock, the payment of which to the holders thereof or the redemption of stock at par was on January 1, 1927, guaranteed by five persons who are, or whose representatives are, parties defendant. In January, 1933, the plaintiffs brought suit against these and other defendants, including the Wilmington Development Company, to recover the sums due the respective holders of the preferred stock, to set aside certain transfers of property alleged to have been made fraudulently, and to appoint receivers for certain of the defendants.
On February 2, 1933, R. W. Harrison and T. D. Dupuy were appointed permanent receivers of the Wilmington Development Company and were directed to possess and control all its property, assets, books, papers, and records. T. D. Dupuy was made permanent receiver of the assets of J. W. Braw-ley, one of the defendants. The receivers were directed within five months to file an itemized statement of the property and the incumbrances on it. All persons, firms, and corporations were enjoined from interfering with the property and assets in the hands of the receivers, and from bringing any action against the receivers and from foreclosing any mortgage or deed of trust on property held by the receivers, without leave of court first obtained. The receivers were authorizedto continue the business of Brawley and of the Wilmington Development Company, if for the best interest of creditors, to collect rents, to pay for repairs, to settle unpaid taxes and premiums on insurance policies, etc., and in their discretion, after an investigation in each case, to permit any person holding a mortgage or deed of trust on any real property to collect the rents from such property to the extent of the overdue interest on such mortgage or deed of trust and apply the same on such overdue interest.
On November 1, 1929, the Wilmington Development Company executed three promissory notes aggregating $33,160, payable November 1, 1930, and secured their payment by a deed of trust to David J. White, trustee, on property in the city of Wilmington. One of these notes in the amount of $17,-160 was held by the Ham Estates, Inc. On the same property there was a prior deed of trust to the Massachusetts Mutual Life Insurance Company securing $55,000. The property was leased to Sears-Roebuck Company for a monthly rental of $800.
The Ham Estates, Inc., filed a petition in the cause on February 14, 1933, alleging that it held the note for $17,600 referred to above and prayed the court to direct the receivers to segregate the income and rents of the property described in the deed of trust dated November 1, 1929, and, after the payment of expenses and prior charges on the property, to apply the remainder pro rata to the payment of the interest...
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Gregg v. Williamson
...1096. Even after default a mortgagee who has not taken possession is not entitled to the rents and profits. Kistler v. Wilmington Development Co., 205 N.C. 755, 172 S.E. 413; Parker Co. v. Commercial Bank, 204 N.C. 432, 168 S.E. 681; Collins v. Bass, 198 N.C. 99, 150 S.E. We now inquire as ......
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Butner v. United States
...v. Fletcher, 271 N.C. 65, 155 S.E.2d 532 (1967); Gregg v. Williamson, 246 N.C. 356, 98 S.E.2d 481 (1957); Kistler v. Development Co., 205 N.C. 755, 757, 172 S.E. 413, 414 (1934) ("In the absence of a stipulation to the contrary a mortgagor of real property who is permitted to retain possess......
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In re Westchase I Associates, LP
...obtaining actual possession in not necessary. The language leading to this mistaken belief can be found in Kistler v. Development Co., 205 N.C. 755, 757, 172 S.E. 413 (1933), where that court gave their interpretation of the status of the law at that time. The court stated that "the prevail......
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In re Westchase I Associates, LP
...By 1933 the North Carolina supreme court apparently felt this was sufficiently established to note in Kistler v. Wilmington Development Co., 205 N.C. 755, 172 S.E. 413, (1933): "In the absence of a stipulation to the contrary, a mortgagor of real property who is permitted to retain possessi......