Harding v. Garber , 20 Okla. 11 ( 1907 )

The principle question presented to this court by the pleadings before it is whether the respondent, as judge of the district court of Garfield county, under the mandates of the Supreme Court of the United States, and of the Supreme Court of Oklahoma, directing that an order be made by the trial court in the principal case, which, without disturbing the possession of Harding, would give to the appellee Myrtle Gillett the right to appear, plead, and make such defense as under the facts in the case and the principles of equity she was entitled to, had jurisdiction to hear the application for or make an order appointing a receiver to take possession of the land and premises in controversy.

Counsel for relator contends that the mandates of the Supreme Court of the United States and of the Supreme Court of Oklahoma fix the status of the relator in the principal action, pending the final termination thereof; that the effect of said mandates is to give the relator a final judgment for the possession of said land and premises, pending the final termination of the original action; and that his status thus fixed cannot be changed prior to that time, and that until such termination of said action he has by virtue of said mandates possession of said land and premises as the owner thereof, not subject to the control of any court.

In determining what was presented to and decided by a court, it is proper to look both to the opinion and mandate of the court. Guadalupe Thompson, Administratrix, et al. v. MaxwellLand Grant Railway Co., 168 U.S. 451, 18 Sup. Ct. 121, 42 L. E d. 539. In which case the court said: "We take judicial notice of our own opinions; and, although the judgment and mandate express the decisions of the court, yet we may properly examine the opinion in order to determine what matters were considered, upon what grounds the judgment was entered, and what has become settled for future disposition of the case." The mandate of the Supreme Court of the United States from which relator quotes in his petition contains this further language: "You therefore are hereby commanded that such action and further proceedings be had in said cause in conformity with the opinion and decree of this court. * * *" Mr. Justice Brewer, who delivered the opinion of the court, in discussing the rights of Harding, who was one of the appellants before the court, said: "Harding, as the grantee of a purchaser at a foreclosure sale, stands in the shoes of the mortgage. Bryan v.Brasius, 162 U.S. 415 16 Sup. Ct. 803, 40 L.Ed. 1022. As shown by the opinion in that case and cases cited herein a mortgagee, who enters into possession, not forcibly, but peaceably, and under authority of a foreclosure proceeding, cannot be dispossessed by the mortgagor, or one claiming under him, so long as the mortgage debt remains unpaid." If, in determining what was decided by the Supreme Court of the United States, and if, in construing its mandate, we consider in connection therewith, as we should, the opinion of the court, it appears that it was decided by that court that the order of the trial court setting aside the judgment and decree of foreclosure, and directing that Harding be dispossessed of the premises, should be vacated, and that such order should be made as would protect the rights of both parties, an order that would give Myrtle Gillett an opportunity to appear, plead, and defend in the foreclosure proceedings, to do which, would require that the judgment and decree of foreclosure be opened; but that since Harding had come peaceably into possession of the mortgaged premises as the grantee of the mortgagee, who was the purchaser under the foreclosure proceedings, his rights, pending the final termination of the action, were those of a mortgagee in possession, and as such should be protected. It is our opinion that it was the intention of the Supreme Court of the United States by its mandates to protect, and that its mandates and the mandate of the Supreme Court of Oklahoma do protect, Harding only in that possession which the Supreme Court of the United States said under the conditions Harding had, which was the possession of a mortgagee. This is the construction that has been given to the judgment and opinion of the Supreme Court of the United States by the Supreme Court of Oklahoma.Gillett v. Romig et al., 17 Okla. 324, 87 P. 325.

The mortgagee in possession holds the estate as a mere trustee for his indemnity. He must perform the duties of his trust. He must apply the rents and profits for the purpose of the mortgage, and must treat the property as a provident owner would. A court of equity will compel him to perform these duties of his trust. It is a general rule of law that the mortgagee, or his grantee, who has come peaceably into possession of the mortgaged property, cannot be dispossessed of same so long as the mortgage debt remains unpaid; but if it appears that the mortgagee is irresponsible, or that the rents and profits will be lost or be in danger of loss, or that the mortgagee is committing waste upon or materially injuring the premises, a receiver may be appointed. 20 Amer. Eng. Enc. of Law (2d Ed.) 1008; 2 Pingrey on Mortgages, § 1796; Boston Providence R. R. Co. v.Railway Co., 12 P. I. 220. The judgments and mandates of the Supreme Court of the United States and of the Supreme Court of Oklahoma protect Harding, pending the termination of the principal action, only in that possession which he had, which, under the opinion of the Supreme Court of the United States, was the possession of a mortgagee. As long as Harding discharges the duties of his trust, he should be protected in that possession; but from the authorities cited, supra, it is seen that the possession of a mortgagee may be devested when it appears that the mortgagee is irresponsible, or that the rents and profits will be lost or be in danger of loss, or that the mortgagee is committing waste upon or materially injuring the premises, and that a receiver may be appointed.

An application for the appointment of a receiver in the principal action now pending in the district court of Garfield county, containing allegations for the appointment of a receiver on the grounds above mentioned, would be such an application as the court would have jurisdiction to hear, and the act of the court in granting or refusing the same would be a judicial act. The application for the appointment of a receiver presented to respondent is not before this court, and in the absence of the same it will be presumed that it contained legal grounds to warrant the action of the court.

The writ of mandamus does not lies from a superior court to an inferior court to control its judicial acts, or its exercise of judicial discretion. Merrill on Mandamus, 32.

It is the opinion of the court that respondent's demurrer to relator's petition should be sustained, and the writs of peremptory mandamus denied, and it is so ordered.

All the Justices concur.