Vaughn v. Wahl

• Decision Date: 24 July 1928
• Docket Number: 18202.
• Citation: Vaughn v. Wahl, 1928 OK 491, 269 P. 305, 132 Okla. 76 (Okla. 1928)
• Parties: VAUGHN et al. v. WAHL et al.
• Court: Oklahoma Supreme Court

269 P. 305

132 Okla. 76, 1928 OK 491

VAUGHN et al. v. WAHL et al.

No. 18202.

Supreme Court of Oklahoma

July 24, 1928

Syllabus by the Court.

After a senior mortgagee began foreclosure proceedings upon a real estate mortgage and set forth grounds, prayed, secured, and filed in court a waiver from mortgagors, for the appointment of a receiver to collect rents and profits from the land mortgaged, and junior mortgagees, being made parties to the action, subsequently pray for appointment of such a receiver and secure the formal order appointing such receiver, and the land was sold to the senior mortgagee at foreclosure sale for less than enough to satisfy his mortgage, held, that he was entitled, as against the junior mortgagee to have funds derived from the receivership applied to his deficiency judgment, and the junior mortgagee was not entitled to any priority as to such funds by securing the appointment.

Appeal from District Court, McClain County; Tom D. Pace, Judge.

Action by E. H. Wahl against J. W. Couch, T. H. Vaughn, J. T Blanton, and others.From the judgment, the last two named defendants appeal.Affirmed.

Blanton Osborn & Curtis, of Pauls Valley, for plaintiffs in error.

Bowling & Farmer, of Pauls Valley, and A. K. Little, of Oklahoma City, for defendants in error.

RILEY J.

The contention here involved is to whom rents and profits collected by a receiver, shall be paid.The contestants are both mortgagees, and the question arises under the following facts:

J. W Couch and Louise K. Couch, on August 11, 1920, executed a first mortgage to Gum Bros. Company, in the amount of $9,800, and covering 280 acres of land located in McClain county.On the same date the same mortgagors executed a second mortgage on the same land in the approximate amount of $2,000, to secure the payment of three commission notes of even date.The notes and second mortgage were sold and assigned to E. H. Wahl.Thereafter J. W. Couch and Louise K. Couch executed a third mortgage on the same land to T. H. Vaughn and J. T. Blanton to secure the payment of notes in the total sum of $4,400.On May 4, 1925, Wahl commenced action in the court below to recover the amount of his mortgage indebtedness and to foreclose his mortgage subject to the prior mortgage which Gum Bros. Company had in the meantime transferred to the Ætna Life Insurance Company.In addition to the mortgagors, Vaughn and Blanton and the tenants on the land were made partiesdefendant in the foreclosure action.The petition of Wahl contained allegations of grounds and a prayer for the appointment of a receiver pendente lite.On May 20, 1925, J. W. Couch and Louise K. Couch executed at Wahl's instance a waiver of issuance and service of summons and consent that a receiver be appointed as sought.

The waiver was filed in the cause May 27, 1925.Thereafter and on June 5, 1925, Vaughn and Blanton filed their answer and cross-petition, set forth their mortgage indebtedness, alleged the same to be inferior to the mortgage of Wahl and that of the Ætna Life Insurance Company, and also asked that a receiver be appointed pendente lite.The tenants on the lands defaulted.

On June 13, 1925, T. H. Vaughn and J. T. Blanton secured an order from the court appointing a receiver pendente lite, with directions to collect rents and profits arising from the lands involved.In the fall, the receiver collected rents in the amount of about $700, and accounted for the same to the court.Thereafter judgment was rendered foreclosing plaintiff Wahl's mortgage and likewise foreclosing the mortgage of...