25-1081. Appointment of receiver; grounds.

A receiver may be appointed by the district court (1) in an action by a vendor to vacate a fraudulent purchase of property, by a creditor to subject any property or fund to his or her claim, or between partners, limited liability company members, or others jointly owning or interested in any property or fund on the application of any party to the suit when the property or fund is in danger of being lost, removed, or materially injured, (2) in an action for the foreclosure of a mortgage or in an action to foreclose a trust deed as a mortgage when the mortgaged property or property subject to the trust deed is in danger of being lost, removed, or materially injured or is probably insufficient to discharge the mortgage debt secured by the mortgage or trust deed, (3) in connection with the exercise of the power of sale under a trust deed and following the filing of a notice of default under the Nebraska Trust Deeds Act when the property subject to the trust deed is in danger of being lost, removed, or materially injured or is probably insufficient to discharge the debt secured by the trust deed, (4) in an action brought pursuant to section 52-1705 to enforce a written assignment of rents provision contained in any agreement and the agreement provides for the appointment of a receiver, (5) in any other case in which a mortgagor or trustor has agreed in writing to the appointment of a receiver, (6) after judgment or decree to carry the judgment into execution, to dispose of the property according to the decree or judgment, or to preserve it during the pendency of an appeal, (7) in all cases provided for by special statutes, and (8) in all other cases when receivers have heretofore been appointed by the usages of courts of equity.

Source

Cross References

Annotations

1. Power to appoint

2. Mortgage foreclosure

3. Insolvent corporation

4. Miscellaneous

1. Power to appoint

Pursuant to subsection (2) of this section, district court did not abuse its discretion when it denied a request to appoint a receiver for under-secured debt in the absence of other evidence that the party's interest in the property were in jeopardy. McCook Nat. Bank v. Myers, 243 Neb. 853, 503 N.W.2d 200 (1993).

Appointment of receiver during pendency of foreclosure action sustained as warranted by the facts and was not an abuse of the court's discretion. O'Neill Production Credit Assn. v. Putnam Ranches, Inc., 198 Neb. 145, 251 N.W.2d 884 (1977).

Supreme Court may appoint a receiver in proceedings by state under Installment Loan Act. State ex rel. Beck v. Associates Discount Corp., 162 Neb. 683, 77 N.W.2d 215 (1956).

District court cannot appoint receiver to carry out mandatory injunction. Frese v. Michalec, 151 Neb. 57, 36 N.W.2d 494 (1949).

Request for appointment of receiver is addressed to sound, equitable discretion of court. Cressman v. Bonham, 129 Neb. 201, 260 N.W. 818 (1935).

Receivership is provisional and ancillary; generally dependent upon main action. Smiley v. Sioux Beet Syrup Co., 71 Neb. 586, 101 N.W. 253 (1904).

Petition for receiver is addressed to sound discretion of court. McKenzie v. Beaumont, 70 Neb. 179, 97 N.W. 225 (1903).

Appointment of receiver is in nature of equitable execution. Sanford v. Anderson, 69 Neb. 249, 95 N.W. 632 (1903).

Judge at chambers may appoint. Morris v. Linton, 62 Neb. 731, 87 N.W. 958 (1901).

Section is merely declaratory of power existing in court; no receiver in ejectment. Smith v. White, 62 Neb. 56, 86 N.W. 930 (1901).

Application usually should be made to district court and not to Supreme Court. Eastman v. Cain, 45 Neb. 48, 63 N.W. 123 (1895).

Grounds should exist at time of appointment; should not appoint in final decree. Chadron Banking Co. v. Mahoney, 43 Neb. 214, 61 N.W. 594 (1895).

Plaintiff may have receiver appointed, pending appeal from part of decree. Benedict v. T. L. V. Land & Cattle Co., 4 Neb. Unof. 471, 94 N.W. 962 (1903).

Authority of receiver appointed by court of competent jurisdiction cannot be collaterally attacked. Miller v. Brown, 1 Neb. Unof. 754, 95 N.W. 797 (1901).

2. Mortgage foreclosure

Where receiver is appointed in mortgage foreclosure proceedings, rents and profits collected from the mortgaged premises by receiver may be applied to satisfaction of mortgage debt. Federal Farm Mortgage Corporation v. Ganser, 146 Neb. 635, 20 N.W.2d 689 (1945).

Where mortgage was in excess of reasonable value of land, appointment of receiver was justified. Modisett v. Campbell, 144 Neb. 222, 13 N.W.2d 126 (1944).

Ordinarily a receiver will not be appointed in foreclosure suit when mortgaged property is homestead of mortgagor. First Trust Co. of Lincoln v. Bauer, 128 Neb. 725, 260 N.W. 194 (1935).

Receiver in mortgage foreclosure proceeding is appointed for the purpose only of conserving the mortgaged property and applying the rents and profits to the satisfaction of the debt. Wells v. Farmers State Bank of Overton, 124 Neb. 386, 246 N.W. 714 (1933).

Appointment of receiver in foreclosure action hereunder is ancillary to main action and such appointment must be made in the foreclosure proceeding by the court having jurisdiction thereof. Prudential Ins. Co. v. Bliss, 123 Neb. 578, 243 N.W. 842 (1932).

Court is not authorized to appoint receiver in foreclosure action for property of mortgagor bank already in custody of another receiver in control of bank's entire assets. Wells v. Farmers' State Bank of Overton, 121 Neb. 462, 237 N.W. 402 (1931), overruled in part in Prudential Ins. Co. v. Bliss, 123 Neb. 578, 243 N.W. 842 (1932).

Where land is insufficient to pay mortgage, and security is endangered by unpaid taxes, appointment of receiver is justified. Lackey v. Yekel, 113 Neb. 382, 203 N.W. 542 (1925); Philadelphia Mortgage & Trust Co. v. Oyler, 61 Neb. 702, 85 N.W. 899 (1901).

Mortgagee in possession under agreement to manage premises may not apply for receiver. Hayes v. Christiansen, 105 Neb. 586, 181 N.W. 379 (1921).

Court may appoint receiver to collect rents for some mortgagees in action and not for others. Goddard v. Clarke, 81 Neb. 373, 116 N.W. 41 (1908).

Appointment may be made pending appeal from confirmation of sale. Buck v. Stuben, 63 Neb. 273, 88 N.W. 483 (1901).

Solvency of mortgagor is immaterial, where property insufficient to pay mortgage debt; mortgagee entitled to collect out of his security, and not to be forced to other remedies. Waldron v. First Nat. Bank of Greenwood, 60 Neb. 245, 82 N.W. 856 (1900); Philadelphia M. & T. Co. v. Goos, 47 Neb. 804, 66 N.W. 843 (1896).

Appointment of receiver is only method of reaching rents and profits pending foreclosure. Huston v. Canfield, 57 Neb. 345, 77 N.W. 763 (1899).

Receiver should not be granted against widow of mortgagor of homestead, under statute relating to homestead rights of survivor. Joslin v. Williams, 3 Neb. Unof. 194, 93 N.W. 701 (1903).

Receiver should be denied where mortgaged property is homestead. Johnson v. Young, 1 Neb. Unof. 28, 95 N.W. 497 (1901).

3. Insolvent corporation

This section was incorporated by reference in procedure for liquidation of insolvent bank. State ex rel. Sorensen v. Nebraska State Bank of Bloomfield, 124 Neb. 449, 247 N.W. 31 (1933).

Where receiver of insolvent bank was appointed pursuant to notice, and receiver qualified and performed legal duties, validity of appointment cannot be collaterally questioned. Brownell v. Adams, 121 Neb. 304, 236 N.W. 750 (1931).

Court of equity has power to appoint receiver for corporation operating at loss with insufficient assets to pay preferred stockholders in full. Miller v. M. E. Smith Bldg. Co., 118 Neb. 5, 223 N.W. 277 (1929).

May appoint receiver for insurance company dissolved under statute. State ex rel. Barton v. Farmers & Merchants Ins. Co., 90 Neb. 664, 134 N.W. 284 (1912).

Receiver for corporation should not be appointed on complaint of minority stockholder, who alleges mismanagement by corporate officers. Miller v. Kitchen, 73 Neb. 711, 103 N.W. 297 (1905).

Court may appoint receiver for insolvent corporation where receivers have been so appointed by the usages of courts of equity. Williams v. Turner, 63 Neb. 575, 88 N.W. 668 (1902).

Where fraudulent mismanagement of property of corporation by its officers is shown, receiver may be appointed. Ponca Mill Co. v. Mikesell, 55 Neb. 98, 75 N.W. 46 (1898).

4. Miscellaneous

Appointment of receiver upon application of a simple contract creditor who has not reduced his claim to judgment is void. Gentsch, Inc. v. Burnett, 173 Neb. 820, 115 N.W.2d 446 (1962).

Word "creditor" does not apply to holder of tax certificate. Walker v. Fitzgerald, 69 Neb. 52, 95 N.W. 32 (1903).

Defendant liable for deficiency judgment may apply for receiver. Philadelphia Mortgage & Trust Co. v. Oyler, 61 Neb. 702, 85 N.W. 899 (1901).

Injunction is not a bar to appointment of receiver by another court where parties are not the same. Carter v. Dime Savings Bank, 61 Neb. 587, 86 N.W. 29 (1901).

A receiver for a partnership may be appointed in cases of insolvency, dissention, probability of waste, or when dissolution is necessary. Veith v. Ress, 60 Neb. 52, 82 N.W. 116 (1900).

Receivers should not be allowed for insolvency of debtor where property is then sufficient. Laune v. Hauser, 58 Neb. 663, 79 N.W. 555 (1899).

Ill will and hostility between joint owners is insufficient. Lamaster v. Elliott, 53 Neb. 424, 73 N.W. 925 (1898).