Bidwell v. Paul

64 Tenn. 693

• Court: Tennessee Supreme Court
• Decided: December 15, 1875
• Status: Published

Opinion

Freeman, J.,

delivered the opinion of the court.

This is an application for a receiver. Property was •conveyed by deed of trust to secure payment of debts. One side claimed and fraudulently obtained possession, ■and beneficiary filed cross-bill to enforce trust by sale of property, asking for a receiver. Hone was appointed, however, in the court below, and no steps taken in that direction, we believe.

.The Chancellor finally decreed sale of the property to pay a debt ascertained by him as a lien on the land under the trust deed. An appeal is prosecuted in forma pauperis. In addition, it is alleged in the cross-bill that the security is scarcely sufficient to pay •debt claimed.

Under these facts, a receiver must be appointed, ■and property rented out, the fund thus arising to be he]d subject to final disposition of the cause. In case-of strict mortgage, it is well settled the mortgagee is entitled to a receiver of the rents during progress of the suit to foreclose, and that one will be appointed, even though there be no prayer for it in the bill, if' the facts stated or shown to the court require it. Henshaw, Ward & Co. v. Wells et al., 9 Hum., 568. A deed of trust is in substance a mortgage, though some immaterial differences may be found between them. The trustee in this case was bound to have-sold long since by terms of the deed. The security may be impaired by use, and change of circumstances-of the country. It has been conveyed to the trustee for payment of this debt. It is not unreasonable that, the proceeds of the security shall be impounded for benefit of creditors during the litigation, especially after-his right to sale of property has been adjudged. In renting the property the claimants will be entitled to-preference upon securing the rent by note to the receiver. The property will be rented for a year from, this time.