Lynch v. Donahoe

On rehearing, appellant earnestly argued that the second mortgage was expressly made subject to the first, and therefore the priority of rights to the appointment of a receiver must necessarily be in the senior holder.

We have made special investigation of the exhibits referred to in the abstract of record, and find that the junior incumbrance contained the following reservation only:

"And we [John Donahoe and Rose Ann Donahoe, the mortgagors] do hereby covenant with the said Williamsburg Savings Bank, its successors and assigns [the second mortgagee] that we are lawfully seized of said premises; that the same are free from incumbrance * * * except a mortgage in favor of the Midland Mortgage Company [first mortgagee] * * *."

Manifestly, the only subjection relates to "incumbrance" on real estate, but not on the rents and profits. As has been previously and many times held by this court, the right to a receivership in the premises is not "a lien or 2. MORTGAGES: incumbrance" on the "rents and profits," rents: re- including those arising under an existing lease, ceivership: even though extending into the future, until priority application therefor in the foreclosure of right. proceeding. See Keokuk Tr. Co. v. Campbell,205 Iowa 414. Such language in the reservation clause above set forth is not appropriate or sufficient to make the second instrument inferior to the first in the matter of the right to a "receiver" to collect and take charge of such personalty; however, it is true that fit and comprehensive expressions would accomplish that result; yet the words here employed were not intended to, nor did they, bring about this condition of priority.

Decision in this case is not made whether or not a different proposition might be offered for solution, were the question here argued one embracing the higher right of the appellant to oust the mortgagee and take possession of the premises under the mortgage and manage the land for the purpose of reducing the secured indebtedness. This proposition is not submitted, under the record as presented to us, and we do not, therefore, consider it. Appellant, in stating the nature of the action, defense, and issues, and then finally in making her discussion, confines the scope of the present investigation to the right of a receiver for the collection of rents and profits.

The appellant's petition for rehearing is overruled.