Ætna Life Ins. Co. v. Broecker

• Court: Indiana Supreme Court
• Writing for the Court: GILLETT
• Citation: Ætna Life Ins. Co. v. Broecker, 166 Ind. 576, 77 N.E. 1092 (Ind. 1906)
• Decision Date: 29 May 1906
• Docket Number: No. 20,813.,20,813.
• Parties: ÆTNA LIFE INS. CO. v. BROECKER et al.

166 Ind. 576

77 N.E. 1092

ÆTNA LIFE INS. CO.

v.BROECKER et al.

No. 20,813.

Supreme Court of Indiana.

May 29, 1906.

Appeal from Circuit Court, Floyd County; Wm. C. Atz, Judge.

Suit by the Ætna Life Insurance Company against Henry B. Broecker and others for the foreclosure of a mortgage. From an interlocutory order denying an application for the appointment of a receiver to collect rents and profits, plaintiff appeals. Affirmed.

J. S. Foley and Miller, Elam, Fesler & Miller, for appellant. C. L. & H. E. Jewett, for appellee.

GILLETT, J.

Appellant appeals from an interlocutory order denying its application for the appointment of a receiver to collect rents and profits pending a decree foreclosing a mortgage. There was a showing that the debt which the mortgage was given to secure was more than a year overdue, and that the interest had not been paid since maturity; that the property had been sold at tax sale, two months prior to the institution of the suit, for $460; that plaintiff had been required to advance the amount of certain fire insurance premiums, the amount not being specified; that the plaintiff was entitled to recover a five per cent. attorney fee, as stipulated in the note; that there were a number of junior incumbrances against the property; that the makers of the note and mortgage were insolvent; and that the property would not sell for a sum sufficient to pay all of said debts. The bill of exceptions shows that upon the hearing the defendants offered evidence as to the value of the land, but the evidence upon this point is not set out, so that if we consider the case upon the merits it will have to be upon the assumption that the evidence showed that the property was amply sufficient to satisfy the superior lien growing out of the sale for taxes and to pay appellant. We may state in passing that the note which the mortgage in suit was given to secure provided for 5 per cent. interest before maturity and for 8 per cent. thereafter. The mortgage provided that the mortgagee should be entitled to rents and profits from and after default, the amount received to be applied in reduction of the mortgage debt in case of redemption. Appellant claims that in view of the provision concerning rents and profits it was, under the admitted circumstances of the case, entitled to have said rents and profits impounded through the medium of a receivership.

The general rule is that to justify the appointment of a receiver pendente lite the mortgagee must show that the premises are insufficient to secure the payment of the mortgage debt, and that the mortgagor, or person executing the note, is insolvent. High on Receivers (3d Ed.) § 643. Where the rents and profits are specially mortgaged a somewhat less stringent rule may be applied, but the existence of such a provision, even when coupled with the stipulation that a receiver may be appointed in case of default, does not, per se, require the appointment of a receiver, and ordinarily at least it is a sufficient reason for refusing the application, notwithstanding such provisions, that the land is an ample security for the debt. The rule is general in the United States that from the view point of equity the beneficial title to the property is in the mortgagor, and the mortgage is regarded as a...