Hill v. Taylor

Crocker, J. delivered the opinion of the Court—Cope, C. J. concurring. The complainant in this action avers that the defendants are a mining company; that Taylor, one of the defendants, was the owner of one-third of the mining claims of the company and mortgaged the same to one Conley, who assigned the mortgage to the plaintiff; that he foreclosed the mortgage, and on the twelfth day of April, 1862, purchased the interest mortgaged at the sale under the decree of foreclosure; that a certificate of sale duly issued to him ; that the defendants are working the claims and taking out gold therefrom; that the dividends upon said one-third interest have been from seventy-five to one hundred dollars per month, and will amount to about that sum in future; that Taylor is still in possession of said one-third part, and receiving the dividends; that he has demanded of Taylor and the defendants the proceeds of said third part, over and above the expenses of working, and the value of the use and occupancy thereof, which they have refused to pay to him; that the claims will be worked out and exhausted before the six [193]months allowed by law for redemption will have expired, and will then be of no value, and that Taylor is insolvent and has no property subject, to execution. The complaint prays that the defendants be required to pay him the proceeds of the one-third interest over and above the expenses of working the same, and that a receiver be appointed to receive the proceeds during the pendency of the suit. To this complaint the defendants demurred—first, because the complaint did not state facts sufficient to constitute a cause of action; second, because of a misjoinder of parties in joining the other members of the company as defendants with Taylor. The Court sustained the demurrer, and entered judgment for the defendants, dismissing the complaint, from which the plaintiff appeals to this Court.

The only question submitted is, whether the complaint states sufficient facts to entitle the plaintiff to the relief prayed for. We think it does, and the Court below, therefore, erred in dismissing it. Sec. 143 of the Practice Act provides that “ a receiver may be appointed by the Court in which the action is pending, or by a Judge thereof. First, before judgment, provisionally, on the application of either party, when he establishes a prima facie right to the property, or to an interest in the property which is the subject of the action, and which is in possession of an adverse party, and the property or its rents and profits are in danger of being lost or materially injured or impaired.” The case made by the complaint is clearly within this provision of the Practice Act. It avers that the claim will be worked out and exhausted before the six months allowed for redemption will have expired, and that it will then be of no value, and that Taylor is insolvent. The demurrer admits these facts to be true; and if true, it shows that the property purchased by plaintiff at the sale, as well as its rents and profits, are in danger of being entirely lost to him unless a receiver be appointed. The plaintiff is entitled, under the law, to the property purchased by him at the foreclosure sale, and to its rents and profits, or the value of the use and occupation thereof from the time of the sale up to the date of any redemption made. In this ease, Taylor, the judgment defendant and mortgagor, is receiving all the profits from the property, and as he is insolvent, they will