Phillips v. Eiland

1. MORTGAGE: Foreclosure. Receiver. A mortgagee who files a bill to foreclose, and prays for a receiver of rents pen-dente lite, is entitled to the receiver when the mortgaged property is insufficient to pay the debt and the mortgagor is insolvent. The principle is the same where the vendor of lands by title bond files his bill for specific performance.

Appeal from the Chancery Court of JSToxubee County. Hon. J. J. DeNNis, Chancellor. The bill alleges that Mrs. Phillips sold the land to Eiland for part cash, and his note on long time for the residue. The note matured, default was made, a deed was tendered, and payment refused. The bill seeks a specific performance; alleges that the land is insufficient to pay the debt, and that the vendee is personally insolvent, and prays for a receiver to take and receive the rents and profits pendente lite. The complainant moved the court for the appointment of a receiver, made the proof to sustain the bill, and the court overruled the motion. The complainant appealed, and assigns for error the overruling of the motion. Filed a brief and written argument, citing 2 Story on Eq., §§ 829, 831 ; Dauiell’s Ch. Pr., 1733, 1734; 5 Paige, Ch., 39-42 ; 43 Miss., 526 ; 46 ib., 120 ; 11 Paige, Ch., 437 ; 48 Miss., 372; 4 S. & M., 294. [Reporters find no brief on file for appellees.]