Jackson v. Hooper & Nolen

COLEMAN, J. The appellees filed their bill to foreclose a mortgage,, and prayed for the appointment of a receiver pending the foreclosure suit. The court granted , the motion, and the appeal is prosecuted from the order appointing a receiver. The averments of the bill, upon which the appointment of the receiver was prayed, are, that the value of the property is inadequate to pay the [639] mortgage debt, that the respondents are insolvent, and refuse to deliver possession of the property, that they are collecting the rents and applying them to their own use, instead of to the mortgage debt, that respondents agreed in their mortgage, to keep the property insured for the benefit of the mortgagee in case of loss, which they have failed and refused to do, and that the mortgagors have failed to pay the taxes assessed against the property. Without doubt- these facts, if true, authorized the appointment of a receiver. Notice of the application was duly given, and the motion was heard and determined by the court upon affidavits filed by the complainants, and counter affidavits by the respondents. We find but one material averment in the bill seriously controverted by the respondents, and that is, as to the value of the property. There is perhaps no question of fact about which parties so widely differ, as they do in the valuation of property. The affidavits offered by the complainants, place the value of the property below that which is necessary to cover the debt secured, including attorney’s fee, and taxes which were past due and insurance, while the affidavits of the respondents, place the value at an amount amply sufficient, and leave a balance. The proper estimate is that placed upon the property at the time of the hearing, and not what the property may have been worth at some previous time, or the probable enhancement at some future day. Tested by this rule, our conclusion is that the weight of the evidence, derived from ex parte affidavits, is with the complainants. In addition to this consideration, the conduct of the mortgagor does not invoke the favorable consideration of the court. He has delayed the payment of the debt for a considerable period since it became due, and refused to surrender possession of the premises, or to turn over the rents as collected. He .agreed in his mortgage, to keep the property insured, which has not been done, and has failed to pay the taxes. It was said in the case of Eslava v. Crampton, 61 Ala. 507, under these circumstances, the court will not closely scrutinize the conflicting affidavits as to the value of the property, on an application for the appointment of a receiver, pending a suit to foreclose the mortgage. That the bill has equity is elementary. — In re Tallas [640] see Mfg. Co. 64 Ala. 567 ; Hendricks v. Freehold Co. 95 Ala. 313 ; Eslava v. Crampton, supra; Ashurst v. Lehman, Durr & Co. 86 Ala. 370. There is nothing in the point, that the register did not make a note of submission for the hearing. Rule 77 Chancery Practice, was not intended to apply to a mere interlocutory application for a receiver pending a suit. It does not appear that any such objection was raised at the hearing. Affirmed.