Belcher v. Aaron

WASTE, C. J.

Pending the prosecution of a suit to foreclose a mortgage, the defendant bank, as mortgagee, made

ex parte

application for and procured the appointment of the defendant Aaron as receiver. The mortgagor, who is not a party to the present action, thereafter moved to vacate the order appointing receiver and it was set aside within a month after its entry. Upon appeal, the vacating order was affirmed.

(Hibernia S.

&

L. Soc.

v.

Ellis Estate Co.,

132 Cal. App. 408 [22 Pac. (2d) 806].) Subsequently, a decree of foreclosure was entered, the property sold pursuant thereto and a deficiency judgment entered. Prior to the sale the mortgagor had assigned to the plaintiff in this action “all of its right, title, claim, interest and estate in and to all moneys collected by C. P. Aaron, alleged receiver in the above-entitled action, and to all moneys, rents, etc., uncollected by said alleged receiver and now due and payable from tenants of the property”. This assignment was in payment for legal services rendered by plaintiff for and on behalf of the mortgagor throughout this litigation. The assignment was held to be valid, based on sufficient consideration and untainted by fraud in the ease of

Hibernia S. & L. Soc.

v.

Belcher,

4 Cal. (2d) 268 [48 Pac. (2d) 681], wherein the mortgagee unsuccessfully sought to have it set aside.

In this action the plaintiff, as assignee of the accrued rents, seeks to recover from the defendant Aaron the rents collected by him subsequent to the entry of the order vacating his appointment as receiver. The trial court made findings and gave judgment in favor of the plaintiff and against Aaron in the sum of $1931.44, representing the aggregate of the rents collected by Aaron after his removal as receiver, less deductions totaling $338.81, for sums necessarily expended by him to keep the premises in a habitable and rentable condition.

Upon this appeal Aaron urges that the moneys so collected by him, together with additional sums furnished by the defendant bank, as mortgagee, had been expended by him in payment of taxes on the property and that he should not, therefore, be answerable for the same. We cannot accept this contention.