North Iowa times. [volume] (McGregor, Iowa) 1867-current, 1869-03-17

describing the General Term Court, now
in session in Church & Bidwelrs Hall,
in this city. We are indebted to JuDGE
BuRDIcK, Of the Winnisheik Circuit, for
the article. Below will be found report
Of such decisions as have been reached.
JUDGE McGLATnERY, the District Judge,
and, of course, the presiding jmist, kindly
hands us the following record. We arc
greatly obliged to both gentlemen, bu,
hope to have no call from either except in
social way.
Fred. IIencke, ct all, IS. Louis Benton,
jr., ct al; Appeal from Clayton County,
March Term, 1869.
Pending proceedings to foreclosc mort
gage, plaintiffs moved for the appointment
OF receiver to take charge Of the mort
gagged premises and collect the rents and
profits, on the ground that the property
was insufficient to pay their claims, and
alleging the insolvency of the mortgagor.
Motion sustained; receiver appointed, and
defendants appeal. Odell & Woodward,
for appellants Updegraff & Noble, for ap-
pellees McGlathcry, Judge. 1t appears
from the pleadings and afidavits that the
premises in question were subject to two
mortgages, the first for s4 900, and the Sc
cond $1,000. The second mortgage is to
secure various parties, 5000 to plaintiffs,
on which this action is founded, making
$1,000 lien on the premises. At the time
the receiver was appointed, the case was
to be continued, and judgment could not
lie rendered before May Term. 1869 and
defendants can then, if they so elect, have
the property sold with years redemption.
The mortgages draw ten per cent. interest.
When the redemption expires, the liens
will amount to over $4,000, without costs
or ia xes. The Court, in appointing the
receiver took these things into considera>
ton, as it is the duty of a Court of Equity
to view the whole case and do substantial
justice between the parties. The petition
is sworn to, and alleges that the premises
are not worth to exceed $4,000. Two afG-
davits are filed, one in support, one oppos-
ing the appointment; one swears that the
premises are not worth to exceed Sc 900 !;
the other claims that they are worth
SS, 600. After careful consideration, two
members of the Court have strong doubts
whether plaintiffs have made showing of
the insulficiency CT the property to pay
their debt, which would entitle them to the
appointment Of receiver, if under the
laws of Iowa receiver could be appointed
in this class Of cases, which will only be
done in clear case.
Callanad & Ingham rs. Shaw, 10 Iowa,
lS3. A part Of the mortgaged premises
were leased by the mortgagor for one year
to Peterson & Larson, before this suit
was commenced, who are defendants here
in. The mortgagor assigned the money
claim for rent to one Harrington, who is
not made defendant, neither was there any
notice served on him of the application for
the appointment Of receiver. 1t is not
alleged that the lease to Peterson and Lar
son, or the assignment to Harrington was
fraudulent. Harrington, not being party,
could not be affected by an order made in
a proceeding Of which he had no notice.
s Paige SGT. 5 Paige IS. 6 Barb 1873.
The authorities cited by counsel in s Wen
dcll 5s4, touching this question are only
applicable where the mortgage is entitled
to the possession. 3d,-IIas the Court
power to appoint receiver in this class of
cases. Section 22l7 of the Rey. of 1860
provides SIN the absence of stipulations
to the contrary, the mortgagor of real es
tate retains the legal title and right to pos
session thereof. Under this statute mort
gage is not an estate in the land, but only
specific lien on the land to secure the
debt; at common law the legal title was
in the mortgage, and he could bring 81 ect-
ment and get possession of the rents and
profits; they were by his contract pledged
for the payment Of his debt. Under sec.
22l7, above referred to, the mortgasee is
expressly prohibited from getting the rents
unless he contracted for lien on them by
the terms of his mortgage. The mort>
gagce's powers ard rights are created and
limited by his mortgage and the law in
force at the time Of making the same,
which enters into and becomes part of
the contract. BY plaintiff mortgage the
mortgagor vas entitled to the possession
until sale on a judgment of foreclosure,
and if he so elects until the expiration Of
the time to redeem. We do not hold that
in no case can receiver be appointed
pending mortgage foreclosure. There
may be cases in which mortgagor may
so abuse his possession that he would for
felt his right to it or in case there was
fraud on the part Of the mortgagor; or, if
he should commit waste, Court of Equity
would interfere whenever it was necessary
to protect the mortgagees interest in the
property upon which he has by Ills con-
tract specific lien. If he wishes to reach
other property in case of this kind, he
must do so by attachment. The order APP
pointing receiver is reversed.
Mr.. Catlin, the prairie traveller and
artist, has communicated to TruLner's
american and Oriental Literary Record
the curious fact-if it should prove to be a
fact-that great river. "larger than the
Mississippi" flows under the Rocky Noun.
Trims Mr. Gatlin Is q hnut To submit tho