ADAMS v. SWAN

ADAMS v. SWAN
1930 OK 235
288 P. 476
143 Okla. 162
Case Number: 21249
Decided: 05/13/1930
Supreme Court of Oklahoma

ADAMS
v.
SWAN.

SWINDALL, J. (dissenting).

¶1 I agree that under the rule of law as announced by this court in the case of Horn v. Lincoln National Life Insurance Co., 120 Okla. 16, 250 P. 74, the court may appoint a receiver of a homestead before his decree of foreclosure is entered, but so holding does not, in my opinion, justify or warrant this court under the facts disclosed by the record to reverse this cause with directions to the trial court to appoint a receiver in said cause, for the reason that the application for the appointment of a receiver is resisted. The property is the homestead of the defendant and the trial court was not authorized under the statutes, subdivision 2, section 518, C. O. S. 1921, to appoint a receiver until it was made to appear to the court by clear and convincing evidence that the property is insufficient to pay the debt. The trial court did not make a sufficient finding upon that issue, but seems to have decided the cause upon the theory that the court was not authorized to appoint a receiver for a homestead. Such is the conclusion of law as stated by the trial court.

¶2 So I am of the opinion that the proceedings should be reversed and remanded to the trial court to determine the cause upon the one issue of whether or not there has been, or may be upon further hearing, clear and convincing evidence offered to establish that the property is probably insufficient to pay the debt.