Myers v. Estell

Citations

• 48 Miss. 372

Syllabus

<p>1. Chancery — receiver.—If the mortgagee or beneficiary in a trust deed do not stipulate for the rents and profits of the estate conveyed, ordinarily he is not entitled to them, nor has he any claim upon them until he has taken possession.</p> <p>2. Same — when mortgagee entitled to. — In the absence of any stipulation in the contract, that the mortgagee shall have the rents and profits, he has no claim thereto merely on the ground that the debt is due and the title become absolute, but is only entitled to a receiver for the .collection and appropriation of the rents where the property is insufficient to pay the debt, and the mortgagor is insolvent, or unable to pay any deficiency that might remain after salo of the property mortgaged.</p> <p>3. Same — appointment of. — The appointment of a receiver on the application of a mortgagee, being a matter resting in the sound discretion of the court, the better rule to govern that discretion is that which will grant the order of appointment, as it may or may not be an essential means to pay the debt secured by the mortgage.</p> <p>4. Chancery — deeds op trust — receiver.—Courts of equity, regarding a deed of trust as a security made by the debtor for the payment of his creditor, will give to the creditor the substantial benefits of such deed; and where the deed gives to the trustee no power to enter upon and take possession of the premises, will and should appoint a receiver, if the trustee, after accepting and acting under the appointment, by combination and collusion with the grantor in the deed declines to execute the trust, and after instituting an action of ejectment to recover the possession of the premises, causes the same to be dismissed against the wishes of a cestui que trust, the property being inadequate to the payment of the debt secured by the conveyance.</p> <p>5. Same — receiver—case in judgment. — M. made deed of trust to W., conveying two-thirds interest in certain lands, to secure a debt for the purch