Phoenix Mutual Life Insurance Co. v. Harden , 1979 Okla. LEXIS 235 ( 1979 )

OPALA, Justice,

concurring specially:

The entire net balance of the receiver’s funds stands, in my view, impressed with the mortgage lien that is unquestionably superior to the claim of the owners for any ground rent accrued before, but uncollected until, the receiver’s appointment.

By signing the mortgage instrument that pledged the rents and profits as additional security for Glenbrook’s obligation, the owners did in fact and in law subordinate all of their rent claims to the lien of the mortgage. Their subordination gives Phoenix, qua mortgagee, a prior lien as to all rent legally reachable for collection by, and in the hands of, the receiver. Rives v. Mincks Hotel Co., 167 Okl. 500, 30 P.2d 911, 914 [1934],

The record discloses no attempt was made below to require that the mortgagee resort first to the property of Glenbrook, the principal obligor, before reaching the land of the surety.

As far as I can divine, the owners invoked neither the suretyship marshaling principle [15 O.S. 1971 § 384] nor the “two-fund-doctrine” [24 O.S. 1971 § 4], also known as “lien marshaling” [42 O.S. 1971 § 17], to protect their surety status. The benefits which might have flowed from their unasserted status are hence beyond the reach of our corrective process on review.