The Chancellor.
A receiver of the rents and profits of mortgaged premises is sometimes appointed on the petition of the mortgagee, after he has filed his bill to fore close the mortgage. The Court must be satisfied, before making the appointment, that the mortgaged premises are insufficient to pay the mortgage debt, and that the mortgagor, or other party to the suit who is personally liable for its payment, is insolvent, or out of the jurisdiction of the Court, so that an execution against him for the balance that should remain due after a sale of the mortgaged premises, would be unavailing. Chase, the mortgagor, who is personally liable for the payment of the debt, has been decreed a bankrupt on his own petition. So far the complainants have made out their case; hut they have failed to satisfy the Court that the mortgaged premises are insufficient to pay the mortgage debt. The security was one of their own talcing, and the presumption is that it is sufficient, until the contrary appears. To sustain their application, they have produced the affidavits of fifteen different persons to the value of the mortgaged premises. The several valuations of these individuals range from $14,500, to $18,000. On the other hand, the defendants have produced the affidavits of sixteen or more individuals, whose several valuations range from $22,000, to $30,000. A majority of the persons last mentioned, value the premises at $25,000 or more. The Court cannot say, under such circumstances, that the mortgaged premises are insufficient security.
The complainants have come too late with this motion. They filed their bill August 13th, 1839, nearly three years ago, and, for aught that appears from their petition, might, with due diligence, have obtained a decree long before this time, and had the mortgaged premises sold. If they were entitled to a receiver, their neglect to apply for his appointment at an earlier day, should be construed as a waiver of their right.
Motion denied.