Philadelphia Mortgage & Trust Company v. Oyler, 9,301

CourtSupreme Court of Nebraska
Citation85 N.W. 899,61 Neb. 702
Docket Number9,301
PartiesPHILADELPHIA 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
Decision Date17 April 1901

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

[61 Neb. 703] 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 [61 Neb. 704] 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, [85 N.W. 900] 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 [61 Neb. 705] 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...

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