1. The affidavit for obtaining the order of publication, sufficiently shows that a cause of action exists by referring to the complaint. The case of McGilvery v. Morehouse refers to affidavits for arrests, with regard to which the requirements of the Code are different. That case adopts the reasoning in the case of Jennings v. Martin, 3 Burrows, 1447. Moreover, in this case it is not necessary that it should appear that there is a good cause of action againstthe defendant. It is enough that he is a necessary party. (Code, Sec. 30.)
As to the affidavits of concealment, they are more than sufficient; but the defendant cannot raise the question here. He has his remedy in the Court below. He has appeared for the purpose of moving to set aside the appointment of a receiver, but has made no affidavit of merits, nor attempted to open his default. (4 Hill Rep. 601.)
2. The appellant next contests the propriety of the order appointing a receiver. At law the mortgagee, before the passage of our Code, was the holder of the legal estate and could support ejectment, and as the owner of the reversion, was entitled to restrain against the tenant for rent. (Moss v. Gilmore, 1 Doug. R. 282, 283.)
By section 260 of our Code, the legal estate remains in the mortgagor, and therefore the mortgagee cannot maintain ejectment. But the property is none the less pledged; and if the debt is due and the thing pledged be insufficient to pay the debt, and the debtor be irresponsible or insolvent, it is obviously against equity that the debtor, or those claiming under him, should be permitted to enjoy the rents and profits. In such a case theincome as well as the principal, belongs in equity to the mortgagee, and so it has always been held in New York under a law like our own, and from which ours has been borrowed. (Lopsky v. Maujer, 3 Sand. Ch. R. 69.) Though the statute has taken away the legal remedy, the right remains, and Courts of Equity enforce it by injunction and receiver. (See Ins. Co. v. Stebbins, 8 Paige Ch. R. 565; Shotwell v. Smith, 3 Edwards Ch. Rep. 589; Quincy v. Cheeseman, 4 Sandf. Ch. R. 405; Howell v. Ripley, 10 Paige Ch. R. 43; Bank of Ogdensburg v. Arnold, 5 Paige Ch. R. 38.)
3. As to the objections that the receiver was appointed without notice, the answer is that it was shown by affidavit that he had fraudulently concealed himself. (Sandford v. Sinclair, 8 Paige, 374, 375.)
4. The appellant objects that the appointment of a receiver was not prayed for in the complaint. It contains a prayer for general relief, under which the plaintiff can take all the relief to which he is entitled by the case pleaded.
JUDGES: The opinion of the Court was delivered by Mr. Justice Heydenfeldt. Mr. Justice Terry concurred.
OPINION
HEYDENFELDT, Judge
The first point relied on is, that the affidavit of publication is not sufficient to have authorized the publication for the purpose of effecting service on the defendant. Under the circumstances of this case, we could not disturb the judgment on any such ground, even if there had been no affidavit whatever. Our Practice Act provides that where a defendant has not been personally served with the summons and a copy of the complaint, he may, at any time within six months after judgment, come in and answer to the merits of the action. This is a positive right which he cannot be deprived of, and which in this case the defendant should have pursued if he had any merits to be propounded. Where a remedy is so perfectly attainable in the Court of original jurisdiction, an appellate Court will not administer it for any cause that can be assigned.
Upon the next ground of error, the position of the appellant is correct. Our statute forbids a mortgagee from recovering the mortgaged estate, and confines his remedy to a foreclosure. The same reason does not, therefore, exist, as by the English rule for appointing a receiver to collect the rents and profits pending the litigation. The mortgage is considered as only the security for the debt; the estate remains that of the mortgagor in the character of owner, and must continue to remain so, with all the incidents of ownership, until, by a foreclosure and sale, a new owner is substituted.
The order appointing a receiver is reversed, and the judgment affirmed at the respondent's costs.