Ortoleva v. Dl Jeser
| Decision Date | 23 April 1937 |
| Docket Number | No. 1290.,1290. |
| Parties | ORTOLEVA et ux. v. Dl JESER et al. |
| Court | Rhode Island Supreme Court |
Appeal from Superior Court, Providence and Bristol Counties; Philip C. Joslin, Judge.
Suit in equity by Robert S. Ortoleva and wife against Elizabeth Di Jeser and others for appointment of receivers of certain partnership properties, wherein a decree appointing receivers was rendered, enjoining foreclosure of any mortgages, and wherein Walter G. Everett filed suit to intervene and foreclose his mortgage. From an order giving the petitioner leave to foreclose, the named parties to the receivership suit appeal, and the receivers appeal.
Appeals denied and dismissed, order affirmed, and matter remanded for further proceedings.
Gurney Edwards, Edward T. Richards, Henry B. Gardner, Jr., and Edwards & Angell, all of Providence, for petitioners. Knauer & Fowler, Luigi De Pasquale, and Philip S. Knauer, Jr., all of Providence, for receivers and mortgagors.
The main case, above entitled, in which the special matter now before this court arose, is a suit in equity, brought in the superior court for the appointment of receivers of certain properties which at the time of the death of Sebastian H. Di Jeser, intestate, belonged to him and the complainant Robert S. Ortoleva as partners in the business of dealing in real estate. The respondent Elizabeth Di Jeser is the widow of the former and the administratrix of his estate, and the other respondents are his children, who are minors. Insolvency seems not to have been any ground for the jurisdiction of the court over the suit, the object of which was to facilitate sales of the partnership properties by having receivers appointed who could make such sales and convey good title.
Ortoleva and another were appointed such receivers, and among the partnership properties of which they took control was an undivided five-twelfths interest in a lot of land with a building on it at the northwest corner of North Main street and Market Square in the city of Providence, which was and is still subject to a mortgage held by the present petitioner, Walter G. Everett, and covering the lot and building and securing the promissory note of the owners. By the decree appointing the receivers, all holders of mortgages on properties of the partnership were enjoined from foreclosing their respective mortgages.
The above-named petitioner later filed in the suit a petition for leave to intervene and to foreclose his mortgage, which is in the usual form of mortgage in this state, with a power of sale by the mortgagee upon default, after the giving of certain required notice. It then secured the payment of a promissory note for an unpaid principal sum of $46,000, then long overdue, with overdue interest of $5,263.69.
The receivers and the parties in the original case opposed the petition, and there was a hearing thereon in the superior court, in which much testimony was introduced as to the fair value of the property subject to the petitioner's mortgage, and as to the greatly depressed state of the market for real estate, due to the general business depression, and as to the probability of there being no competitive bidding at any foreclosure sale that might be held.
After the hearing, a decision was entered in the superior court, in which it was found that the evidence was "overwhelming" that the fair market value of the property was less than the aggregate amount due, for principal and interest, on the mortgage and to the city for overdue taxes amounting to about $4,000; that the depressed state of business in general and the market for real estate in particular was no equitable ground for preventing the foreclosure of the mortgage; and that therefore the petitioner was entitled to foreclose. An order was entered accordingly, giving the petitioner leave to foreclose. The matter is now before us on two appeals taken from this order, one by the receivers and the other by Robert S. Ortoleva and Elizabeth Di Jeser, individually and as administratrix. The latter appeal was also joined in by the widow, and executrix of the will, of Francesco Caito, one of the mortgagors.
The two claims of appeal set forth eight reasons, but they all raise only two really substantial questions: (1) Whether the superior court was in error in finding that the equity of redemption in the mortgaged property was of no value, and (2) whether the proven state of severe depression in the real estate market, due to the national economic depression, required that the petition for leave to sell the mortgaged property by foreclosure sale be denied.
As to the former question we are convinced that the finding of the superior court was well supported by the evidence. As to the latter question we are of the opinion that, although the evidence showed that the market for real estate was in an extremely depressed condition...
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Ortoleva v. Di Jeser, 1345.
...the foreclosure of any mortgage on any of such properties. In a very recent opinion under the same title as the present one and reported in 191 A. 505, we decided a similar special matter arising in the same suit; and that opinion may be referred to for a fuller description of the suit and ......