Locke v. Klunker

Citations

• 123 Cal. 231
• 55 P. 993
• 1898 Cal. LEXIS 1019

Syllabus

<p>Foreclosure oe Mortgage—Power of Receiver—Right of Mortgagor to Crops.—The court cannot by the appointment of a receiver in an action for the foreclosure of a mortgage under section 564 of the Code of Civil Procedure, take from the mortgagor or from any person claiming under him, the rents, issues, and profits of the mortgaged premises, if the mortgage does not so provide in terms, and a receiver appointed by the court in such action cannot be properly directed to apply the proceeds of the growing crops on the mortgaged premises to the deficiency judgment, where the decree of foreclosure was not entered until the crops were gathered.</p> <p>Id.—Construction of Code—Effect of Appointment of Receiver— Creation of Lien.—It was not intended by section 564 of the Code of Civil Procedure to create a new lien not before existing by the mere appointment of a receiver; and when he is appointed for any legitimate purpose, he cannot be directed to take possession of the crops of the mortgagor upon which no lien previously exists.</p> <p>Id.—Capacity of Administratrix to Sue—Demurrer—Answer.—It is not sufficient ground of demurrer that it does not appear from the complaint that plaintiff had capacity to sue as administratrix of the estate of a deceased mortgagor, but it must appear that she has not such legal capacity to sue, and where it does not so appear, the objection can only be taken advantage of by answer.</p> <p>Id.—Ownership of Mortgage—Pleading.—Where the note and mortgage sued upon were on their face made to the decedent, of whose estate plaintiff is administratrix, and were in the possession of the plaintiff, an averment that the plaintiff is the owner and holder is unnecessary.</p> <p>Id.—Evidence of Nonpayment—Production of Note by Administratrix of Deceased Payee.—The production of the note from the possession of the plaintiff, as administratrix of the estate of the deceased payee, with the indorsements of payments made thereon, is sufficient evidence of nonpa