ground for the appointment of a receiver, in the absence of proof of further equitable grounds, has not been adopted in some states, as in New Jersey, on the ground that the mortgagee has an adequate legal remedy,' while in other states, as in California and South Carolina, the general doctrine has not been enforced, upon the ground that the mortgagor remains the owner of the legal estate, even after condition broken, until his estate is divested by a foreclosure, sale and deed thereunder, and is consequently, during such period, entitled to the rents and profits. In Iowa and Michigan the mortgagor is entitled to the use and occupation of the mortgaged premises until the expiration of the statutory period of redemption.' 'In Chetwood v. Coffin, 30 N. J. Eq. 450, where it was admitted that there was no personal security for the payment of the mortgage debt; that the premises were insufficient security; that the property was rented and the rents not applied in payment of taxes, or the interest, a receiver was appointed. And see also Brasted v. Sutton, 30 N. J. Eq. 462, where waste had also been committed and was threatened. Cortleyeu v. Hathaway, 11 N. J. Eq. 39; but in Frisbie v. Bateman, 24 N. J. Eq. 28, it was held that mere inadequacy of security and insolvency were not a foundation for a receiver on the authority of Cortleyeu v. Hathaway, supra; and Best v. Schermier, 6 N. J. Eq. 154. A contrary rule exists in New York. Warner v. Gouverneur, 1 Barb. 38; Bank of Ogdensburg v. Arnold, 5 Paige, 39; Shotwell v. Smith, 3 Edw. Ch. 588; Sea Ins. Co. v. Stebbins, 8 Paige, 566. See also Oliver v. Decatur, 4 Cranch C. C. 458; Union Trust Co. v. St. Louis, I. M. & S. R. Co. 4 Dill. 114; Williamson v. New Albany, etc. R. Co. 1 Biss. 198. A receiver of rents and profits will not be appointed at the instance of a mortgagee of the land, no express lien having been given upon the rents and profits, although the mortgaged estate be inadequate to secure the loan and the mortgagor insolvent. Phoenix Mut. L. Ins. Co. v. Grant, 3 MacArth. 220. "In West v. Conant, 100 Cal. 231, it is held that a purchaser at a foreclosure sale is entitled to the rents and profits, or the value of the use and occupation, from the time of sale until redemption, still the debtor is entitled to remain in possession until the expiration of the redemption period, and is entitled to the crops. White v. Griggs, 54 Iowa, 650. In Guy v. Ide, 6 Cal. 99, it is said: "Our statute forbids a mortgagee from recovering the mortgaged estate and confines his remedy to foreclosure. . . . The mortgage is considered as only a 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." McMillan v. Richards, 9 Cal. 410. In Hardin v. Hardin, 34 8. C. 77, it is held that as the mortgagor remains the owner of the mortgaged land, the rents belong to him until a foreclosure, and the mortgagee has no lien on the rents and profits, unless it is so stipulated in the mortgage. Reeder v. Dargan, 15 S. C. 185; Seignious v. Pate, 32 S. C. 134. A receiver of the rents of mortgaged premises, appointed in an action to foreclose the mortgage on the ground of the insufficiency of the security, is entitled to the rents accruing during the pendency of the action and before his appointment, as against a receiver in supplemental proceedings maintained against the mortgagor. Donlon & M. Mfg. Co. v. Cannella, 89 Hun, 21. A mortgagee is not entitled, before foreclosure, to the appointment of a receiver to preserve the rents and profits, unless the lands are of insufficient value to secure the mortgage debt. Lindsay v. American Mortg. Co. 97 Ala. 411; Blondheim v. Moore, 11 Md. 365; Moritz v. Miller,87 Ala.331. A receiver will not be appointed in Michigan in a suit by persons succeeding to the right of a mortgagee of a reversioner's interest in land, against the life tenant, to establish a lien for taxes paid by complainant on the premises, and to compel the payment of other taxes assessed thereon, the appointment of a receiver not being the proper remedy, under the Michigan method of enforcing the collection of unpaid taxes upon lands and of foreclosing liens. Jenks v. Horton, 96 Mich. 13. Otherwise in New York. See Cairns v. Chabert, 3 Edw. Ch. 312; Sidenberg v. Ely, 90 N. Y. 257. The right of a mortgagor to the rents and profits pendente lite is a substantial one, under the laws of Michigan (How. St. § 7847), which must be recognized in the courts of the United States in administering the rights of the parties to a mortgage; and they cannot, therefore, appoint a receiver to take the rents and profits to apply on the mortgage prior to the completion of foreclosure by sale and confirmation, although the security is inadequate. Union Mut. L. Ins. Co. v. Union Mills Plaster Co. 37 Fed. Rep. 286, 3 L. R. A. 90. In Swan v. Mitchell, 82 Iowa, 307, it was held where the mortgage covered the rents, issues, products and profits thereof," and gave the mortgagee the right, upon default, to take possession and rent or cultivate the same, this of itself was not ground for a receiver during the redemption period. White v. Griggs, 54 Iowa, 650; Paine v. McElroy, 73 Iowa, 81; Hazeltine v. Granger, 44 Mich. 503: Beecher v. Marquette & P. Rolling Mill Co. 40 Mich. 307; Wagar v. Stone, 36 Mich. 364; Newton v. McKay, 30 Mich, 380; Humphrey v. Hurd, 29 Mich. 44; Hogsett v. Ellis, 17 Mich. 363; Newton v. Sly, 15 Mich. 391; Van Husan v. Kanouse, 13 Mich. 303; Ladue v. Detroit & M. R. Co. 13 Mich. 380; Crippen v. Morrison, 13 Mich. 23; Caruthers v. Humphrey, 12 Mich. 270; Baker v. Pierson, 5 Mich. 456. See contra, Hollenbeck v. Donnell, 94 N. Y. 342; Pasco v. Gamble, 15 Fla. 562 (see this case as to right of possession of mortgagor); Jenner Fust v. Needham, L. R. 31 Ch. Div. 500. A receiver cannot be appointed of mortgaged property to take the rents, issues, profits and crops, and apply them in payment of the mortgage, although the mortgage expressly provides therefor, under the Oregon statute providing that a mortgage shall not be deemed a conveyance so as to enable the mortgagee to recover possession without foreclosure and sale, and by which he is not entitled to rents and profits before actual posses sion. Thomson v. Shirley, 69 Fed. Rep. 484. (e) The inadequacy of security contemplated by the rule above has reference solely to the plaintiff's indebtedness, and does not include other lien indebtedness against the property.' (f) The proof must be clear and satisfactory, in order to warrant the court in granting the relief, under the rule under discussion; but this rule is relaxed if, in addition to the inadequacy of security, other equitable grounds for relief are shown, such as the nonpayment of taxes, insurance premiums, waste, and the like." (g) Under the present English practice, rents collected between the date of the certificate under foreclosure judgment and the day fixed for redemption by the mortgagee or receiver, go in reduction of the amount due on the mortgage, but if collected after redemption date they belong to the mortgagee.* § 175. Same subject continued. A few observations relative to the causes which have brought about the disagreement noted above may be profitably stated in this connection. In some states the mortgagor is regarded as retaining the legal title to the mortgaged premises, and the mortgagee as being vested only with an equitable title held as security for the indebtedness. In other states the mortgagee is regarded as holding the legal title subject to the defeasance in the mortgage, and of course in such case one condition broken has a right to recover possession in a common law action. Some courts have construed the mortgage as transferring the rents and profits of the 1 Warner v. Gouverneur, 1 Barb. 36. Cone v. Combs, 18 Fed. Rep. 576; Burlingame v. Parce, 12 Hun, 144; Shotwell v. Smith, 3 Edw. Ch. 588. 3 Cordeyeu v. Hathaway, 11 N. J. Eq. 39; Oldham v. First Nat. Bank, 84 N. C. 304; Stockman v. Wallis, 30 N. J. Eq. 449; Chetwood v. Coffin, 30 N. J. Eq. 450. Where a mortgagor has sold the mortgaged premises, he is not in a position to oppose the appointment of a receiver. Wall Street F. Ins. Co. v. Loud, 20 How. Pr. 95. If the mortgagor is insolvent and the mortgage premises are cultivated in a wasteful manner, a receiver may be appointed. Dunlap v. Hedges, 35 W.Va. 287. 4 Jenner-Fust v. Needham, L. R. 31 Ch. Div. 500, Affirmed in L. R. 32 Ch. Div. 582. But see Hoare v. Stephens, L. R. 32 Ch. Div. 194. A receiver has no right to purchase the mortgaged premises during the period allowed for redemption, and if he does so will not be entitled to the rents and profits. Herrick v. Miller, 123 Ind. 304. mortgaged premises as part and parcel of the estate granted, while others have looked upon such rents and profits as separate and distinct from the estate conveyed, and inseparable from the use and occupation, and viewed in this latter aspect some courts have maintained that the right of the mortgagor to the rents and profits terminated with sale of the premises under the foreclosure decree and others that the rights of the mortgagor thereto ceased only at the end of the statutory period of redemption. It is probable that the irreconcilable differences noted are due to the methods of construction adopted by different courts, some of them construing the mortgage deed strictly in accordance with its terms, while others from a broader standpoint have given it a more liberal construction in accordance with the actual intention of the parties. One is the legal and the other the equitable construction, one is the express legal intent and the other the unexpressed equitable intent. § 176. Over what appointed. The receivership in mortgage foreclosures is limited to the property embraced in the mortgage,' or such portion thereof as may be necessary for the payment of the mortgage indebtedness.' It may be either real property, personal property or a leasehold interest, and where the parties in interest are within the jurisdiction the property may be beyond the jurisdiction of the court." If the mortgage includes the rents, issues and profits and the receiver takes possession he is entitled to the growing crops, in case of a deficiency.' So also in case of a mortgage of chattels, if they 1 Wormser v. Merchants' Nat. Bank, 49 Ark. 117; Staples v. May, 87 Cal. 178. If the mortgage embraces a hotel, the receiver may run the hotel in order to prevent an impairment of the security. Lowell v. Doe, 44 Minn. 144. Not so however if the good will is not included in the mortgage. Whitley v. Challis [1892] 1 Ch. 64; St. Louis Car Co. v. Stillwater Street R. Co. 53 Minn. 129; Lowell v. Doe, 44 Minn. 144. Trisilian v. Caniffe, 4 Ir. Ch. N. S. 399. A receiver may be appointed over the whole of property at the instance of a mortgagee of an undivided are being levied on in the hands of the mortgagor by attachments,' but a mortgagee in possession will not be disturbed by a receiver, while a balance remains due him; or in case of a mortgage of a leasehold interest, where the mortgagor fails to pay the rent and an eviction is threatened,' or where the mortgagor is insolvent and has transformed his equity in the premises,' and the security is inadequate,' or in case of equitable mortgages as in the case of the deposit of title deeds. A receiver appointed in a mortgage foreclosure proceeding where the mortgagor, or other person liable for the mortgage debt, is insolvent is entitled to the rents and profits of the mortgaged premises, not yet paid and to accrue.' By the appointment the mortgage becomes entitled to an equitable lien on the rents and profits. sold by a judgment creditor. This decision is based upon the doctrine that the mortgagee only has a lien upon the property, and that the rights of the receiver are not retrospective. Favorite v. Deardorff, 84 Ind. 555. Cf. Lilly v. Dunn, 96 Ind. 220; Bryson v. McCreary, 102 Ind. 4; Merritt v. Gibson, 129 Ind. 155, 15 L. R. A. 277. 1Crow v. Red River County Bank, 52 Tex. 362; Maish v. Bird, 59 Iowa, 307. Quinn v. Brittain, 3 Edw. Ch. 314; Patten v. Accessory Transit Co. 4 Abb. Pr. 235, 13 How. Pr. 502; Bayaud v. Fellows, 28 Barb. 451; Washington Iron Works Co. v. Jensen, 3 Wash. 584. The judge in vacation has no power, in a suit to foreclose a chattel mortgage, to appoint a receiver and order a sale of the property in advance of the regular foreclosure sale, on the ground that the conditions of the mortgage have not been performed, and that there is danger of the property being materially injured and depreciated in value. Wilson v. Aultman & T. Co. 91 Ky. 299. (See Civ. Code Ky. 299). Cf. Furlong v. Edwards, 3 Md. 99. 3 Barrett v. Mitchell, 5 Ir. Eq. 501. Astor v. Turner, 2 Barb. 444, 3 How. Pr. 225; Reid v. Middleton, 7 Turn & R. 455; Smith v. Kelley, 31 Hun, 387. Smith v. Kelley, 31 Hun, 387; Astor v. Turner, 2 Barb. 444; Reynolds v. Quick, 128 Ind. 316. Holmes v. Bell, 2 Beav. 298; Aberdeen v. Chitty, 3 Younge & C. 379; Shakel v. Duke of Marlborough, 4 Madd. 463. In England all junior mortgages are treated as equitable mortgages. An equitable mortgagee is entitled to a receiver when the mortgagor is in possession, whether the security is scanty or not. A mortgagee on default is entitled to possession without any reference to the value of the property. Aikins v. Blain, 13 Grant. Ch. (Ont.) 646. "Astor v. Turner, 11 Paige, 436; Howell v. Ripley, 10 Paige, 43; Lafsky v. Maujer, 3 Sandf. Ch. 69; Oakford v. Robinson, 48 Ill. App. 270; Conover v. Grover, 31 N. J. Eq. 539; Rider v. Bagley, 84 N. Y. 461; Hayes v. Dickin son, 9 Hun, 277; Post v. Dorr, 4 Edw. Ch. 412; Johnston v. Riddle, 70 Ala. 219; Stirm v. Ermantrout, 89 Ind. 214. But see Best v. Schirmier, 6 N. J. Eq. |