Benefield v. Cox

SOMERVILLE, J. .[1] It has been expressly determined. by this court that, in a suit by a mortgagee, who has purchased at his own sale without authority, to compel an election by the mortgagor to either affirm or disaffirm such purchase, the chancery court is without authority to appoint a receiver for the rents and profits, though the mortgagor is insolvent and is committing waste. McLean v. Presley’s Adm’r, 56 Ala. 211, 218. [2, 3] This is because the purchaser has the absolute legal title — 'until it is disaffirmed by the mortgagor — and could maintain ejectment for the land; and a receiver may be appointed for the preservation of the crops that are attached to the land, in proper cases, in aid of the suit in ejectment, as in Hendrix v. A. F. L. M. Co., 95 Ala. 313, 11 South. 213. So a receiver may he appointed in proper cases at the suit of a mortgagee for foreclosure, on the theory that the rents and profits are in equity subject to the lien of the mortgage. Phillips v. Taylor, 96 Ala. 426, 429, 11 South. 323; 19 R. C. L. p. 561, § 369; High on Receivers, § 644. [4] This bill is filed upon the theory, asserted in the bill as a conclusion of law, that the mortgagor is entitled to disaffirm the foreclosure sale as in cases where the mortgagee has purchased at Ms own sale without authority. This theory is founded1 in error. The bill shows that complainant is a mere beneficiary under the mortgage, being the equitable owner of a part of the debt secured, but shows also that he is not a party to the mortgage or the notes. As to him, the mortgagee, with Ms power of sale, is Ms trustee, and complainant is a mere cestui que trust. He stands therefore in no such relation of trust to the mortgagor as forbids Ms purchase at a sale by the trustee —mortgagee under the power; and so the authorities all- hold. 19 R. C. L. p. 612; § 429; 27 Cyc. 1483b; Wiltsie on Mort. Farecl, p. 873, § 609; and the numerous authorities cited therein. In this view of the case, the bill is without equity, and the receivership must necessarily fall. It results that the decree of the chancery court was without error, and must be affirmed. Affirmed. ANDERSON, O. J., and MAYFIELD and THOMAS, JJ., concur,