Philadelphia Mortgage & Trust Company v. Oyler

• Decision Date: 17 April 1901
• Docket Number: 9,301
• Citation: 85 N.W. 899,61 Neb. 702
• Parties: PHILADELPHIA MORTGAGE & TRUST COMPANY, APPELLEE, v. WILLIAM M. OYLER ET AL., MINNESOTA TITLE INSURANCE & TRUST COMPANY, APPELLANT, CONSOLIDATED WITH PRESIDENT AND DIRECTORS OF THE INSURANCE COMPANY OF NORTH AMERICA v. WILLIAM M. OYLER ET AL
• Court: Nebraska Supreme Court

85 N.W. 899

61 Neb. 702

PHILADELPHIA MORTGAGE & TRUST COMPANY, APPELLEE, v. WILLIAM M. OYLER ET AL., MINNESOTA TITLE INSURANCE & TRUST COMPANY, APPELLANT, CONSOLIDATED WITH PRESIDENT AND DIRECTORS OF THE INSURANCE COMPANY OF NORTH AMERICA v. WILLIAM M. OYLER ET AL

No. 9,301

Supreme Court of Nebraska

April 17, 1901

APPEAL from the district court for Lancaster county. Heard below before HOLMES, J. Affirmed.

AFFIRMED.

Strode & Strode, for appellants.

S. L Geisthardt and Field & Brown, contra.

OPINION

HOLCOMB, J.

Two separate actions in equity were instituted for the purpose of foreclosing mortgage liens on two tracts of real estate, and the recovery of the debts secured thereby, which were afterwards consolidated and prosecuted as one action. The matters in controversy are common to both actions before consolidation; hence, the propriety of treating them as but a single case. After the execution of the mortgages, the properties mortgaged, being two adjoining improved lots, were several times transferred, the grantee in each instance assuming and agreeing, as a part of the consideration for the purchase price, to pay the mortgage debt with which the property was encumbered. At the time the action was begun the properties were owned by one Charles W. Russell, a non-resident, who prior to its commencement had executed a second mortgage on both lots to the appellant, the Minnesota Title Insurance & Trust Company, to secure the payment of the sum of $ 2,000. After the commencement of the action, and on the 10th day of March, 1896, the Title Insurance & Trust Company, subsequent mortgagee, obtained from the owner of the premises as further security an assignment of a lease to the premises held by the owner, and the rents accruing thereunder, amounting to the sum of $ 200 per month. During the pendency of the foreclosure proceedings, and on May 26 1896, the defendant and appellee, Cochran, made application for the appointment of a receiver of the premises in controversy, in which application the mortgagor and defendant Oyler afterwards joined. A receiver was prayed for on the ground that the applicants were liable for any deficiency that might exist after the sale of the mortgaged property; that the subsequent grantees, who were also liable for a deficiency, and to whom they stood in relation as surety to principal, were non-residents of the state, without the jurisdiction of the court, and against whom no judgment could be rendered, and that they could obtain no relief as against them, except by resort to a court of foreign jurisdiction, in the event they were required to pay any deficiency in the action at bar. It is also alleged in substance, that the taxes on the premises have not been paid, and have been suffered to become delinquent in a large sum, and that the premises were liable to be sold for taxes; that they were in a bad state of repair, were going to waste, were falling into decay and becoming unsuitable for tenants; that the rents and profits were being diverted for the purpose of paying a subsequent lien, etc.; all of which endangered the security and rendered the property insufficient to pay the mortgage debt. The application was resisted by the Title Insurance & Trust Company on the ground that it held a valid assignment of the lease of the premises; that the applicants had no standing in court for the purpose of having a receiver appointed, and, in case of any deficiency, had ample recourse on the subsequent grantees, who were solvent, that the Russells, its creditors and subsequent grantees, were insolvent, and unless the rents and profits were applied to its lien, it would be remediless; and denying the allegations of waste. The sheriff was, on June 5, appointed a temporary receiver. On October 6 the mortgagees joined in the application for a receiver. On December 8 the applicants, Oyler and Cochran, moved to have the sheriff apply the moneys received by him as temporary receiver on the delinquent taxes assessed against the premises. This was resisted by the appellant, who prayed for an order directing the sheriff to pay the moneys held by him to it. As to the appointment of a permanent receiver, and the disposition of the moneys collected by the temporary receiver, it was ordered by the court that a permanent receiver be appointed, and that the temporary receiver be directed to pay and apply the moneys received by him on delinquent taxes assessed against the mortgaged premises. From the order directing the temporary receiver to pay the moneys collected by him in satisfaction of taxes assessed against the premises, and denying appellant's motion to have the same paid to it, an appeal is taken to this court, and we are called upon to decide as to the correctness of the ruling referred to.

It is argued by appellant that the order is in violation of its rights as an assignee of the lease of the premises and the rents accruing thereunder; that Cochran and Oyler had no such interest in the suit as would give them a standing to apply for the appointment of a receiver, and that the subsequent grantees, being financially responsible for any deficiency, the applicants would not suffer any injury, and that the evidence was not sufficient to authorize the appointment of a receiver. It occurs to us that but two principal propositions are involved in a proper discussion of the case: First, were the applicants, occupying the position they did with relation to the suit, entitled on their motion in a proper case to have a receiver appointed; and second, under the facts as disclosed by the record, was it an abuse of discretion in the trial court to appoint a receiver of the property and direct the payment of the moneys collected in the manner stated?

By the provisions of the statute a receiver may be appointed for several causes, among which are: (a) In an action by a creditor to subject any property or fund to his claim, or between those jointly owning or interested in any property or fund which is in danger of being lost, removed or materially injured; (b) in an action for the foreclosure of a mortgage when the mortgaged property is in danger of being lost, removed or materially injured, or is probably insufficient to...