Van Pelt v. Russell

HART, J., (after stating the facts). In the attachment case the record shows that an application was made for the appointment of a receiver to take charge of the land involved in the foreclosure suit; that H. D. Bussell was appointed as such receiver for the purpose of renting the land and collecting the rents therefrom. These facts are shown by the order appointing him as receiver. The record also shows that he entered upon the discharge of his duties as such receiver and demanded that Van Pelt should pay him the rent for the land for the year 1916: that Van Pelt was in possession of the land and refused to pay rent therefor to Bussell. In October, 1916, Bus-sell commenced an action against Van Pelt to recover the land and an attachment was levied upon the crop grown by Van Pelt on the land. Counsel for Van Pelt rely upon the case of Brickey v. Cotter, Admr., 119 Ark. 543, and other cases of like character, for a reversal of the judgment in the attachment case. The facts in the two classes of cases are not analogous. In the case referred to, the mortgagor remained in possession until after the sale in the foreclosure suit, and no effort was made by the mortgagee, until after such sale, to collect the rents. The court held that they were not entitled to the rents by virtue of their purchase at the foreclosure sale. In the present case the receiver was appointed under section 6354 of Kirby’s Digest. That section provides that in an action by a mortgagee for a foreclosure of a mortgage, and the sale of the mortgaged property, a receiver may be appointed where it appears that the property is probably insufficient to discharge the mortgage debt, or for other causes not necessary to mention here. Russell was appointed by the chancery court under the provisions of this section of the statute. He had the right, and it was his duty, under the order of the court appointing him as receiver, to take possession of the mortgaged premises for the purpose of renting them out. When possession was withheld by Van Pelt, or he refused to attorn to Russell, the court upon proper application might have interfered in a summary way and enforced its orders. 34 Cyc. 204. So when Van Pelt refused to deliver the mortgaged premises to Russell, or to attorn to him, Russell should have applied to the court to compel Van Pelt to do so. Not having done this, he was not entitled to bring an action to enforce a landlord’s attachment. There was no relation of landlord and tenant created by the order appointing Russell receiver of the mortgaged premises and directing him to take charge thereof and to collect the rents therefrom. To create the relation of landlord and tenant between them, there must either have been a valid contract between the parties to that effect, or an order of the court directing Van Pelt to attorn to Russell, followed by acquiescence therein on the part of Van Pelt. See Love v. Cahn, 93 Ark. 215. The reason is, that the relation of landlord and tenant is always created by contract, either express or implied; and it will never be implied when the acts and conduct of the parties are inconsistent with its existence. 16 R. C. L. section 13, page 541. In the instant case, as we have already seen, the receiver never got possession, of the land and Van Pelt not only refused to attorn to him but claimed the right to hold the land until evicted -under an order of the -court. Therefore the court erred in directing a verdict for the plaintiff. In the replevin suit but little need be said. In that case the court directed a verdict in favor of the defendant because the plaintiff had not complied with section 5415 of Kirby’s Digest relating to foreclosures under chattel mortgages. The section provides that, before any mortgagee shall replevy under his mortgage on personal property, such mortgagee shall make and deliver to the mortgagor a verified statement of his account showing each item, debits and credits, and the balance due. It appears from the record that the chattel mortgage was given for better security of the indebtedness secured by the mortgage on real estate. In the foreclosure proceedings on the real estate mortgage, it was adjudged that the mortgage indebtedness was $3,100, and judgment was rendered in favor of the mortgagee against the mortgagor for that amount. The land sold for $2,150 at the foreclosure sale. This left a deficiency which the mortgagee had a right to have paid or satisfied by a foreclosure of the chattel mortgage. No useful purpose could have been served by the rendition of an account; for as we have just seen the amount of the mortgage indebtedness has been adjudicated in the foreclosure proceedings on the real estate mortgage. The facts bring the case squarely within the rule announced in Perry County Bank v. Rankin, 73 Ark. 589, and no verified statement of account under the statute was required. It appears from the record that the chattel mortgage was given as additional security for the mortgage indebtedness. The mortgagee had a right to first foreclose his mortgage on the land, and, when it did not sell for enough to satisfy the mortgage indebtedness, to foreclose his mortgage on the chattels. It follows that the judgment in each case must be reversed and the cause will be remanded for a new trial.