(specially concurring).
I concur with the result reached by the majority but cannot concur with their reasoning because:
1. The majority has construed Federal Land Bank of Omaha v. Heeren, 398 N.W. 2d 839 (Iowa 1987) as holding that Iowa Code § 628.3 (1987) prohibits a receiver from taking possession of land. I fail to find Heeren so holds. In Heeren the court clearly states the mortgagors failed to object to the appointment of a receiver on the ground of possession under § 628.3 or the fact the mortgage did not pledge rents and profits consequently. Id. at 841-42. Therefore, the issue of a receiver taking possession contrary to § 628.3 was neither addressed or decided in Heeren.
2. The majority bases its holding on the premise that the debtor can have the possession while the receiver takes rents and profits. This holding is not consistent with current Iowa statutory and case law. Iowa Code § 680.4 (1987) defining powers of a receiver, provides:
Subject to the control of the court, a receiver has power to bring and defend actions, to take and keep possession of property, to collect debts, to receive the rents and profits of real property, and, generally, to do such acts in respect to the property committed to the receiver as may be authorized by law or ordered by the court, (emphasis added).
In American Investment Co. v. Farror, 87 Iowa 437, 441, 54 N.W. 361, 363 (1893), the Iowa court said:
But the right of possession carries with it the right to use the mortgaged premises, to lease them, and to control the *654revenue which shall be derived therefrom. (emphasis added).
Therefore the right of possession and the right to rents and profit are not separate rights.
I agree with the result reached by the majority because I find by virtue of the language of the mortgage, defendant gave plaintiff a lien on their right to possession under § 628.3 when they gave plaintiff the right to immediate possession and to the appointment of a receiver. See American Investment Co., 87 Iowa at 441, 54 N.W. at 363.
Defendants do not deny they gave the right to immediate possession and the right to rents and profits. Rather, they contend their agreement should not be enforced because to do so is contrary to public policy.
In Farmers Trust & Savings Bank v. Manning, 359 N.W.2d 461, 463 (Iowa 1984), the Iowa court determined the right to redeem is statutory and not constitutional. There is nothing in the law which forbids the disposition of redemption or possession rights. These rights can be disposed of separately. See Hartman Manufacturing Co. v. Luse, 131 Iowa 492, 96 N.W. 972 (1903).
Having determined defendants gave plaintiff a lien on their § 628.3 possession rights and the other requirement for the appointment of a receiver having been met, I would affirm the trial court.