Parker v. Williams , 230 Ala. 437 ( 1935 )

Bill by the appellant mortgagor to cancel certain real estate mortgages held by the appellee as receiver of the Farmers' Merchants' Bank of Samson, claiming payment of the mortgage debt, praying an accounting, and in the alternative for a redemption if it be ascertained that any of the debt remains unpaid. Appellee answered the bill and made the same a cross-bill seeking a foreclosure and the appointment of a receiver pending this litigation to collect the rents and preserve the property. The trial court, under the pleading, and evidence by affidavits, appointed a receiver, and it is from this order the appeal is prosecuted.

It is well settled by the decisions of this court that the appointment of a receiver is a most delicate power which should be exercised with great caution. It is also as well settled that if the mortgaged property is of sufficient value to pay the debt, a receiver should not be appointed regardless of the insolvency of the mortgagor. Taylor v. Hoffman, 229 Ala. 420,157 So. 851; McDermott v. Halliburton, 219 Ala. 659,123 So. 207. From aught appearing, either by averment or proof, the property is amply sufficient to pay the mortgage indebtedness regardless of the mortgagor's failure to have paid the tax and insurance. Therefore, pretermitting the question as to the sufficiency of the affidavit of Martin, supporting the cross-bill, the order appointing the receiver was improper and the decree is reversed and one is here rendered vacating said order.

Reversed and rendered.

GARDNER, BOULDIN, and FOSTER, JJ., concur.

On Rehearing.