Burleigh v. Keck

Mr. Presiding Justice Sears

delivered the opinion of the court.

But two questions are presented. First, as to whether Keck, the owner of the second mortgage, or Burleigh, the assignee of the rights of the owner of the equity of redemption, was entitled to the rents and profits of the land during the period of redemption; and, second, whether Burleigh, having failed to prosecute his appeal from the order appointing the receiver, can now maintain this appeal from the order disposing of the funds collected by the receiver.

As to each question, we think that the contention of appellant must be sustained. There having been no deficiency in satisfying the claim of the mortgagee who filed the bill to foreclose, and appellee Keck not having intervened until after the expiration of the term of the final decree in the foreclosure suit, b)T answer, cross-bill or petition, to obtain the foreclosure of his mortgage, but having simply claimed a junior right to share in distribution, it would seem that, under all the authorities, appellant, as assignee of the rights of the owner of the equity of redemption, was entitled to the rents and profits of the mortgaged premises collected by the receiver. Davis v. Dale, 150 Ill. 239, affirming Dale v. Davis, 51 Ill. App. 328.

The term of court had passed at which the final decree in the foreclosure suit was entered. No deficiency decree had been obtained or sought by any one. The court had no power thereafter in that proceeding to reach these rents and profits during the period of redemption, for the purpose of applying them on a mortgage upon which no relief had been sought or obtained. Lilly v. Shaw, 59 Ill. 72; Hurd v. Goodrich, 59 Ill. 450; Adams v. Gill, 158 Ill. 190.

Nor do we look upon the failure of appellant Burleigh to prosecute his appeal from the order anpointing the receiver as in any way affecting his present right to assert claim to . funds collected by the receiver.

In Dale v. Davis, supra, this court, speaking through Mr. Presiding Justice Shepard, said: “ The fact that the receiver was permitted to hold possession did not alter the rights of the owner of the equity of redemption. The possession of the receiver must be conceded as for the benefit of him whose right to the premises existed,” etc.

“ The receiver is a quasi trustee, holding the fund for the benefit of whoever may eventually establish title thereto.” Gooding v. King, 30 Ill. App. 169; King v. Gooding, 130 Ill. 102; High on Receivers, Sec. 1.

The mere entry of an order directing the receiver to take charge of the funds in no way affects the rights of parties to assert their claim to such funds thereafter.

The order is reversed and the cause is remanded, with directions to enter an order that the receiver pay over to appellant, Burleigh, the funds in his hands,less such amounts as may be allowed him as receiver for expenditures and attorney’s fees. Reversed and remanded, with directions.