ment, and then refused an offer to purchase the property for the amount of the encumbrance, possession to be delivered after she had reaped the crop. In the Frisbie Case, the court refused to appoint a receiver of a certain crop of grass upon the mortgaged premises, at the instance of the holder of the first mortgage, although the mortgagor had made an assignment for the benefit of creditors, and the assignee had sold the premises, the mortgagor was apparently insolvent, and the premises were inadequate security. The court says that the case stands on precisely the same ground that it would have stood on had there been no assignment, and the application had been made against the mortgagor. In Mahon v. Crothers (1877) 28 N. J. Eq. 567, however, the court appointed a receiver, saying that it is not according to the principles of practice of that court to refer the mortgagee to the courts of law for means to reach the rents and profits.

It was held within the power of a court to appoint a receiver in a proper case, although the time of payment set in the mortgage had not yet come, in Long Dock Co. v. Mallery (1858) 12 N. J. Eq. 431, an action involving a mortgage on buildings, machinery, and tools of a contractor.

In Sales v. Lusk (1884) 60 Wis. 490, 19 N. W. 362, where a second mortgagee, who had taken a short-term mortgage, and had begun foreclosure proceedings after his mortgage became due and within about four weeks from the time it was given, was denied a receiver when there was nothing whatever to show that there was any change, either in the condition of the mortgaged property or in the circumstances of the mortgagors, intermediate to execution of the mortgage and commencement of the foreclosure action, and where there was no sufficient evidence to warrant the assumption or charge that the assignees of the mortgagors, who were in possession of the property, were mismanaging it in any way, or that they were permitting it to depreciate and the buildings to go to decay, or that they were not making all out of it possible

for the benefit of those having liens upon it. This was held, although the mortgagors were shown to be insolvent and the property inadequate security for the payment of prior liens and that of the plaintiff.

A receiver will not be appointed where the security is adequate, the mortgagor solvent, taxes and insurance paid to date, and the property well cared for, although there is a default on the plaintiff's mortgage (a second mortgage), and an instalment of interest on the first mortgage is about two months past due, and an instalment of principal about eight months past due. Justus v. Fagerstrom (1918) 141 Minn. 323, 170 N. W. 201. According to the court, failure to pay interest accrued on a prior mortgage is a species of waste, but an act of waste does not always justify the appointment of a receiver. Only where the waste is of such a character as to endanger the adequacy of the security will a receiver be appointed. The refusal of a receiver was affirmed, upon a subsequent appeal of this case in (1920) 145 Minn. 189, 176 N. W. 645, where a slight additional showing in favor of the appointment of a receiver was made, in the fact that the defendant failed to keep the buildings in repair, but the additional matter was held not to make a sufficient showing.

In Adair v. Wright (1864) 16 Iowa, 385, it was held improper to appoint a receiver, where it was shown by the mortgagor that the property was not going to waste or in need of repair, but, on the other hand, was comparatively in a good state of préservation. This, according to the court, coupled with the fact that the mortgagees had adequate security for the whole debt in an appeal bond, was sufficient to vacate the order appointing a receiver.

In Morris v. Branchaud (1881) 52 Wis. 187, 8 N. W. 883, where the court refused the appointment of a receiver, it is said: "There is no pretense that any taxes were unpaid, or that any of the property was out of repair, or going to waste, or of any less value than when the mortgages were respectively

given; and since none of the respective mortgage debts had increased in amount since the giving of such mortgages, but, on the contrary, some of them had been materially diminished, the plaintiff, at the time of the appointment of the receiver, held all the security that the respective mortgagees contracted to receive, and

much more."

An affidavit stating that the affiant knows the value of the premises, that it is meager security, that a special paving assessment has recently been levied against the property, as the affiant is informed, and that the owner is in litigation over the property, and is insolvent, that the property has been neglected, and that affiant paid insurance and taxes for the preceding year, was held not to make a sufficient showing to authorize the appointment of a receiver, in Murphy v. Hoyt (1901) 93 Ill. App. 313.

So far as the allegations contained in the bill for foreclosure and the appointment of a receiver are contained in the report in Moyers v. Coiner (1886) 22 Fla. 422, they are shown in the statement of that case in XI., infra. Whether these were all of the allegations is not clear. The court states that, after a careful consideration of all the allegations of the bill and the affidavits filed, it found no justification for the appointment of a receiver.

3. Appointment where waste appears. Without expressly holding that there must be waste or deterioration of the security, some cases, in which the facts show what amounts practically to waste or deterioration, have held that a proper case for the appointment of the receiver appeared. Jackson v. Hooper (1894) 107 Ala. 634, 18 So. 254; Albritton v. Lott-Blackshear Commission Co. (1910) 167 Ala. 541, 52 So. 653; Wood v. Grayson (1900) 16 App. D. C. 174; Haas v. Chicago Bldg. Soc. (1878) 89 Ill. 498; Buchanan v. Berkshire L. Ins. Co. (1884) 96 Ind. 510 (see other Indiana cases infra, 58); Lowell v. Doe (1890) 44 Minn. 144, 46 N. W. 297; Lothrop v. Collazo (1901) 1 Porto Rico Fed.

Rep. 131; Dunlap v. Hedges (1891) 35 W. Va. 287, 13 S. E. 656; Finch v. Houghton (1865) 19 Wis. 150; Schreiber v. Carey (1880) 48 Wis. 209, 4 N. W. 124.

A variety of facts appear in the foregoing cases. A proper case for the appointment of a receiver was held to exist in Jackson v. Hooper (Ala.) supra, where the value of the property was inadequate to pay the mortgage debts, the mortgagors were insolvent and refused to deliver possession of the property, and were collecting the rents and applying them to their own use instead of to the mortgage debts, and there was a failure to keep the property insured for the benefit of the mortgagee, as agreed, and a failure to pay taxes assessed against the property.

A receiver was appointed in Albritton v. Lott-Blackshear Commission Co. (1910) 167 Ala. 541, 52 So. 653, in a suit by the holder of the second and third mortgages to foreclose the same, where the mortgagor was insolvent and the property insufficient to satisfy the mortgages, and the uncertainty produced by the inability of the mortgagor to meet the interest payments on the first mortgage and make necessary advances to work the farm would probably result in all income from the farm being lost.

The order of the trial court appointing a receiver was affirmed in Wood v. Grayson (1900) 16 App. D. C. 174, in a suit by the holder of a second trust deed, where it appeared that the mortgagor was insolvent and the property not of sufficient value to secure the amount of the first and second trust deeds, and where it further appeared that parties who had secured possession of the property were guilty of fraud in mismanaging it and diverting the rent.

A receiver was appointed after sale in Haas v. Chicago Bldg. Soc. (1878) 89 Ill. 498, where the mortgaged premises were inadequate security, and the mortgagor was insolvent, and the mortgagor, who was in possession, allowed taxes to accumulate, and also failed to have the buildings on the property insured, collected rents and

used them, allowing interest on the several liens to accumulate, and allowing some of the encumbrances to culminate in what might be a valid legal title, and where it further appeared that the mortgagor had no ability or intention of redeeming the property, but was seeking to make all out of it he could and render it as little available to the mortgagee as possible.

In Buchanan v. Berkshire L. Ins. Co. (1884) 96 Ind. 510, a receiver was appointed at the instance of the second mortgagee, upon his cross complaint in an action brought by the first mortgagee to foreclose, where the property was not sufficient to satisfy the claim of the first mortgagee and that of the second, and those liable for the debts were insolvent, and the owners of the property were suffering it to get out of repair and to deteriorate.

A receiver for hotel property, in an action to foreclose a real estate mortgage thereon, was held to have been properly appointed in Lowell v. Doe (1890) 44 Minn. 144, 46 N. W. 297, where there had been a discontinuance of the hotel business, which, if lasting for any considerable time, would result in a depreciation of the value of the property to such an extent that it would become insufficient security for the mortgage debts, and where it appeared that the insurance which had been effected for the benefit of the mortgagee was likely to be canceled because of the closing of the hotel, and taxes on the property had been suffered to become delinquent.

A receiver was appointed in Lothrop v. Collazo (1901) 1 Porto Rico Fed. Rep. 131, where the mortgagors had been guilty of committing waste by permitting the mortgaged premises greatly to deteriorate in value for want of proper cultivation and attention, so that it appeared that the mortgagee was likely to lose his security unless a receiver was appointed.

In Finch v. Houghton (1865) 19 Wis. 150, it was held proper to appoint a receiver, where the mortgaged premises were inadequate security and

those personally liable were probably not able to pay the deficiency, and where it further appeared that the whole mortgage debt was due, and considerable interest, which was payable annually, remained unpaid, and those in possession neglected to pay the taxes and had endeavored to obtain tax deeds upon the mortgaged property in order to defeat the mortgage.

A receiver was appointed in Schreiber v. Carey (1880) 48 Wis. 208, 4 N. W. 124, upon an affidavit of the mortgagee which alleged that the taxes on the premises for the past two years remained unpaid, that the premises were advertised for sale for the taxes for the last year, and had been sold to the county for the taxes of the prior year, and the certificate of sale transferred to strangers. The affidavits also tended to show that the value of the premises did not exceed $4,000 or $4,500. The principal sum secured by the mortgage was $4,300, and was not yet due at the time the receiver was appointed, but there had been a judgment rendered for interest, amounting to $594.

A receiver was appointed in Farmers' Nat. Bank v. Backus (1896) 64 Minn. 43, 66 N. W. 5, to collect the rents and apply them in payment of delinquent taxes and interest due on the first mortgage on the premises, any balance to be disposed of under the further order of the court.

In other cases, also, the right to the appointment of a a receiver, where waste or danger of loss or destruction of property appears, is recognized. According to the court in Central Trust Co. v. Chattanooga R. & C. R. Co. (1899) 36 C. C. A. 241, 94 Fed. 275, when the mortgaged property is not of value sufficient to secure the payment of the mortgage debt, or when its sufficiency becomes substantially doubtful, and the mortgagor is insolvent, accruing interest matured and unpaid, like accruing taxes due and unpaid, takes the character of waste as clearly and distinctively as deteriorations by the cutting of timber, suffering dilapidation, etc. In such cases courts of equity always have the

power to take charge of the property

by means of a receiver. A trustee of bonds was held entitled to a receiver in Farmers' Loan & T. Co. v. Meridian Waterworks Co. (1905) 139 Fed. 661, where the mortgagor, a water company, had been deprived of its contract with a city, under which the waterworks were constructed and were being maintained, by a decree of the state court adjudging that the waterworks company had no longer any interest in the contract. It cannot be said that a petition for the foreclosure of a trust deed, which alleged the maturity of the bonds secured by the trust deed, by default in the payment of interest for more than a year, and also an emergent condition requiring the immediate interposition of a court of equity to prevent serious loss from an impending tax sale, did not, on its face, present a case for the appointment of an interlocutory receiver in aid of the relief sought. Etna Steel & I. Co. v. Hamilton (1911) 137 Ga. 232, 73 S. E. 8. But on the interlocutory hearing for a permanent receiver, in which it appeared that the plaintiff, who was a bondholder, was not entitled to foreclose the mortgage (the right to foreclose being in the trustee, and there being no refusal on his part to act), and that the mortgagor had offered to pay the tax executions which were proceeding against the property, it was held error to refuse such offer and to appoint a permanent receiver. Ibid. Nothing is said as to the default. The appointment of a receiver upon entering judgment that, in default of payment of the amount found due the mortgagee within a stated time, the trust deed would be foreclosed, was held not error where it appeared that the security was a sham, that the mortgagor was out of the jurisdiction of the court, and that the principal, with interest thereon, had been due for two months prior to the filing of the bill for foreclosure, and that the buildings had not been kept insured nor the taxes paid. Gale v. Carter (1910) 154 Ill. App. 478. receiver was appointed in Haugan v. Netland (1892) 51 Minn. 552, 53 N. W. 873, in an action by a second mort

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gagee to foreclose his mortgage, where the owner of the property, a grantee of the mortgagor, was a nonresident, and, although receiving the rents from the property, refused to pay the interest due upon the mortgages, and where the property, in itself inadequate security, was the only resource for the collection of the mortgage debt, the mortgagor, who alone was personally liable for the indebtedness, being insolvent. The court states it to have been the clear duty of the owner to keep down the interest upon the encumbrances; that unless this was done the second mortgagee would himself be obliged to pay the prior encumbrance, in order to prevent the foreclosure thereof; and that, as to that encumbrance at least, a court of equity might properly interfere and direct that the rents be applied to satisfy the interest due and accruing thereon. In Farmers' Nat. Bank v. Backus (1896) 64 Minn. 43, 66 N. W. 5, it was held proper to appoint a receiver, in an action to foreclose a mortgage made in the form of an absolute deed with an agreement to reconvey, where it appeared that the taxes for one year were unpaid and delinquent, that a considerable amount of interest was past due on a first mortgage on the premises, that the mortgaged premises were wholly inadequate as security for the first mortgage and the plaintiff's mortgage, and that the mortgagors were insolvent. Upon a subsequent appeal in (1896) 67 Minn. 43, 69 N. W. 638, it is stated that what application should be made, upon the final determination of the action, of the rents and profits collected by the receiver, was not before the court; but the court adds that, in case the plaintiff redeems from the sale on the first mortgage, he will be entitled to have them applied towards such redemption; at least, to the extent of the taxes and interest on the first mortgage included in that sale. The court in Lowell v. Doe (1890) 44 Minn. 144, 46 N. W. 297, says: "Whether a receiver should now be appointed pendente lite, from the mere fact of the insolvency of the debtor and the insufficiency of the se

curity, at least, if that is not becoming depreciated by reason of the culpable acts or neglect of the mortgagor, may perhaps be doubted; but we are not called upon to decide that. In this case stronger grounds for this interposition of equity are added to those above mentioned."

A receiver was appointed in Myers v. Estell (1873) 48 Miss. 372, in a suit by the cestui que trust under a deed of trust, where the trustee in the deed had failed to perform his duties thereunder, the property was precarious security for the debt, and the obligations of tenants for rent, amounting to several thousand dollars, had been assigned to a nonresident by the mortgagor, in part to create a fund subject to his control out of the state, and the mortgagor had combined with the trustee and deprived the cestui que trust of the enforcement of the trust security, and, notwithstanding the forbearance of the creditor for four years, had made no payment on the debt. It is stated that in no other mode productive of such little injury to either party can this be done, as by intrusting the property to a receiver, whose control of it will not be adverse or hostile to either, but who will hold it, and its income, so as to answer the ends of justice when the final decree shall be rendered. A receiver was appointed in Hyman v. Kelly (1865) 1 Nev. 179, where the mortgagors in possession were receiving the rents. and profits, and failing to pay the taxes and neglecting to keep the buildings in repair, and one of them threatened to destroy the buildings if deprived of the possession. The mortgagors were insolvent in this case.

both companies were insolvent, and that the earnings of the road were being diverted to the payment of the expenses of construction, it was held that bondholders might have a receiver appointed to take charge of the property.

The affidavits filed in support of a motion for a receiver in Schreiber v. Carey (1880) 48 Wis. 208, 4 N. W. 124, alleged a failure to pay taxes and a sale for unpaid taxes of a prior year, but seemingly the court in this case sustained the general equitable power of the court to appoint a receiver in a foreclosure case, without regard to whether or not waste was being committed.

A receiver seems to have been granted in Winkler v. Magdeburg (1898) 100 Wis. 421, 76 N. W. 332, upon the ground that the mortgagors or their assignee had failed to pay taxes and the cost of insurance on the mortgaged premises. The court says: "The payment of taxes and cost of insurance is necessary to preserve the property. Equity devolves it upon him who has the use. Not to pay them is waste. The failure of the defendant to pay the taxes and insurance was casting a burden on the mortgaged estate, which equity demanded that the mortgagors should discharge."

e. Nonpayment of taxes.

The mere fact that the mortgagor has allowed taxes to become delinquent does not authorize the appointment of a receiver. Planters Oil Mill v. Carter (1913) 140 Ga. 808, 79 S. E. 1120. It is held in this case that the mortgagee of a mill property, the value of which is largely in excess of the valid indebtedness secured by the mortgage, is not entitled to a receiver upon the mere fact that the mortgagor suffered taxes to a small amount to accumulate and remain unpaid, where it did not appear that the security of the mortgagee would manifestly be impaired, even if a portion of the mortgaged property should be sold for taxes, and where it was not shown that the property was of such a character that the execution could not be