Boyd v. Benneyan

SHENK, J.

This is an appeal from an order made after final judgment -discharging a receiver and directing the payment of the balance of moneys in his hands to the defendants.

The action was brought to foreclose a mortgage on real property given to secure a promissory note in the sum of $8,750 executed by defendant Mrs. H. Benneyan, in favor of the plaintiffs. The mortgage by its terms also covered the rents, issues, arid profits of the mortgaged premises. Before the mortgage was executed, the defendant mortgagor had signed a marketing contract with defendant Sun-Maid

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Raisin Growers of California, pursuant to which the latter was entitled to receive delivery of the 1925 crop of raisins grown on the mortgaged premises. Subsequent to the execution of the mortgage and prior to the commencement of this action, the defendant Mrs. H. Benny an gave to each of the defendants Paul Enochian and M. S. Constantian a mortgage on the 1925 crop to secure payment of notes for '$1,475.71 and $856, respectively. All of these mortgages were duly recorded. At the commencement of the action a receiver was appointed by the court to take possession of the mortgaged premises, manage, cultivate, and farm the same, harvest, sell, and dispose of the crops, and collect and hold the rents, issues, and profits subject to the further order of the court. ■ The order appointing the receiver was made on a showing that the value of the premises was less than the mortgage debt and that the defendant mortgagor was insolvent. Upon a hearing the trial court found the facts, concerning which there is no dispute, and entered its decree of foreclosure wherein it was adjudged that the plaintiffs were entitled to a sale of the mortgaged premises; that the receivership be continued to carry out the provisions of the decree and ordered that the rents, issues, and profits received from the property prior to the sale be applied to the payment of any deficiency, and that the rents, issues, and profits arising after the sale and during the period of redemption be paid to the

purchaser

at said sale. Pursuant to the decree, and on April 14, 1925, “a sale of the premises was conducted at which plaintiffs became the purchasers. A deficiency judgment in their favor in the sum of $1,435.58 was entered. No appeal was taken from the judgment and no motion was made to set it aside, until the events hereinafter related. The receiver took possession at the time of his appointment and farmed the premises. After the sale, but within the period of redemption, he harvested the crops and delivered them to the defendant Sun-Maid Raisin Growers of California. Out of the proceeds which he received therefor, after deducting his expenditures,, he reported a balance on hand of $234.20. There were, however, further ■sums to be received from the defendant Sun-Maid Raisin Growers, on account of the sale and delivery to that corporation of the crops involved. On February 4, 1926, the report of the receiver was approved, whereupon the court