Gottschalk v. Jungmann

¶1I concur with Mr. Justice Hatch, except in so far as he holds that the defendant was liable for the rents that were collected by the owner of the property after notice to foreclose the mortgage was given by the appellant. There is nothing to show in this record that the mortgagee would have been entitled to the appointment of a receiver of the mortgaged premises had she promptly commenced to enforce the mortgage. There is no allegation or proof that at the time the notice was given the property was insufficient to secure the amount due on the mortgage. It seems to be assumed that because, upon a subsequent sale under the judgment there was a deficiency, the mortgagee would at the time when she should have commenced her action to foreclose have been entitled to a receiver; but I can find no evidence to justify such an assumption. Nor do I consider that it was the duty of the mortgagee to apply for a receiver. When the notice to foreclose was given it was her duty to take the usual and customary steps to enforce the mortgage, and it is the damages sustained by a failure to perform that duty that the appellant is entitled to recover. If the mortgagee had at once commenced her action to foreclose the mortgage, and prosecuted the same with diligence, she would not have been liable because upon a subsequent sale there was a deficiency and the owner of the property had been able to collect the rents in the meantime. The plaintiff was liable for the damages sustained by reason of her failure to do what the plaintiff requested her to do, viz., to at once proceed to foreclose the mortgage. Upon the record it would seem that the damage thus sustained was the interest upon the mortgagor’s debt for the time she delayed in commencing the foreclosure action and the liens for taxes and the water rates that accrued during that period, and that, I think, is the extent of her liability.