§ 197. As Between Tenants in Common. Some of the decisions affecting the rights of tenants in common have been considered in connection with the subject of partition. The general rule in respect to the rights of co-tenants is that courts are averse to appointing receivers in controversies between them and will not appoint a receiver over the property where it is not shown that the defendants are in the exclusive possession of the rents and profits and excluding their co-tenants from participation therein or are insolvent or so mismanaging the property as to imperil it or cause its loss.1 land and subsisting policies of insurance. Beamish v. Stevenson, 18 L. R. Ir. 319. See, also, Orr v. Grierson, 28 L. R. Ir. 20. In Tompkins v. Fonda, 4 Paige C. C. (N. Y.) 448, the court required the defendant to assign to the receiver for the purpose of this suit her right of dower in certain premises and he was authorized to proceed in her name for the recovery of the same and receive the rents and profits until the further order of the court. Where a married woman seised of real estate has issue of the marriage, born alive and dies without disposing of such property, and her husband survives her, he becomes entitled to an estate as tenant by the curtesy which estate will pass to a receiver of his property appointed in supplementary proceedings who may by virtue of such receivership recover the rent due at the time of his appointment as well as that accruing afterwards. Beamish V. Hoyt, 2 Rob. 307, 25 N. Y. Sup. Ct. Rep. 307. In litigation by grantees of rent charges, a receiver may be ap pointed to protect the property from dilapidation. White v. Smale, 22 Beav. 72. A receiver was appointed over the benefice of a clergyman of the Church of England where he had made the debt, which was the subject matter of the litigation, a charge upon it. White v. Bishop of Peterborough, 3 Swans. 109. In England it is held that where one has a right or estate of such a character that his creditors may have execution against it by writ of elegit, it is such an estate over which a receiver may be appointed. Davis v. Duke of Marlborough, 1 Swans. 74. 1 Blood v. Blood, 110 Mass. 545; Heinze v. Kleinschmidt, 25 Mont. 89, 63 Pac. 927; Vaughan v. Vincent, 88 N. C. 116. Where one co-tenant who is in possession of the property is disposing of the property and appropriating the proceeds of such disposition and is shown to be insolvent, a receiver is properly appointed. Sims v. Adams, 78 Ala. 395. Courts will not appoint a receiver against a tenant in common ere dissensions and the existence of ill will between the co-tenants will not be regarded as sufficient ground for the appointment, unless such facts prevent a proper use of the property or operate as a substantial exclusion of the complaining co-tenant from the rents and profits arising from the property. A person claiming to be a co-tenant of property may be refused a receiver on the ground of his laches in asserting his rights. Thus where in the case of a mining property he made no complaint of being excluded from participation until after the property had become valuable. Courts in cases of controversies between co-tenants, as in other cases, have sometimes directed that the co-tenant in possession should give security to the complaining co-tenant for his portion of the rents and profits or in default of such security it except in cases of destructive waste or gross exclusion. Ex parte Billinghurst, 1 Amb. 46; Ex parte Radcliffe, 1 Jac. & W. 640. Except in extreme cases, the appointment will be denied. Scurrah v. Scurrah, 14 Jur. 874; Norway v. Rowe, 19 Ves. Jun. 144; Milbank v. Revett, 2 Merid. 405; Spratt v. Ahearne, 1 Jones Eq. 50. If the co-tenants are insolvent, in possession and excluding the plaintiff from his share of the rents and profits, a tenant in common may have a receiver. Williams v. Jenkins, 11 Ga. 595; Cassetty v. Capps, 3 Tenn. Ch. 524. Where the tenant excluding his co-tenants from participation in the rents and profits is insolvent, a strong case is made for the appointment of a receiver. Williams v. Jenkins, 11 Ga. 595. The owner of a life estate in an undivided one-eighteenth of certain oil lands was held entitled to a receiver pending proceedings to determine plaintiff's title to the property. Higgins Oil etc. Co. v. Snow, 113 Fed. 433, 51 C. C. A. 267. May procure the appointment of a receiver, where the defendant or tenant in position is insolvent. Hill v. Taylor, 22 Cal. 191. As to what will constitute such an exclusion, see Tyson v. Fairclough, 2 Sim. & St. 142; Sandford v. Ballard, 33 Beav. 401. 2 Wallace v. Pierce-Wallace Pub. Co., 101 Iowa 313, 63 Am. St. Rep. 389, 38 L. R. A. 122, 70 N. W. 216. 3 Lamaster v. Elliott, 53 Neb. 424, 73 N. W. 925. 4 Norway v. Rowe, 19 Ves. Jun. 144. A receiver may be appointed over a rent charge. Wise v. Beresford, 3 Dr. & War. 276; Cullen v. Dean etc. of Killaloe, 2 Ir. Ch. 133. would appoint a receiver to secure the same." And in cases where the appointment of a receiver is proper, the court may appoint a receiver of the rents and profits of the moiety claimed by the plaintiff where the defendant is in possession of the whole. But when the conduct of the co-tenant in possession is of such a character as to amount to an exclusion of the complaining co-tenants from the property itself, the receivership will be extended over the whole property. The same general rules are applicable to cases of tenancies in common of equitable estates.8 § 198. Tenants in Common Using the Property as a Business. As was shown before, property held as tenants in common when used for purposes of trade may be treated as partnership property and the rights of the parties considered in the light of the principles applicable to controversies between partners if a receiver is sought.1 Cases of this sort most frequently arise in connection with property used for mining purposes, but in such cases an additional circumstance is also considered in connection with the preservation of the property, and that is that the working of the property operates as a destruction of the property itself and sometimes the failure to work it will injure it by the filling of the workings with water in case of a mine, or of the drainage of the oil by neighboring oil wells in case of oil wells. On account of the peculiarities of cases of this kind, we will treat the matter in a separate subdivision. 5 Street v. Anderton, 4 Bro. C. C. 414. 6 Hargrave v. Hargrave, 9 Beav. 549. 7 Sandford v. Ballard, 33 Beav. 401. 8 Sandford v. Ballard, 30 Beav. 1 In this connection see, also, § 187, relative to the partitioning of property used in a business capacity. See, also, Roberts v. Eberhardt, Kay. 148, 159. 2. Actions for the Recovery of Real Property. § 199. Settlement of Disputes as to Title. It is not the policy of the courts of equity to take charge of real estate and manage it through a receiver as against a party in possession asserting title in himself unless it is shown to be in imminent danger of great waste or irreparable injury. But even in such cases the courts will require a strong showing as to the likelihood of the plaintiff ultimately establishing his right to recover. The realty the subject matter of the litigation is not capable of destruction or removal and hence the necessity for a receiver can seldom be so urgent as in other cases. Exception to this rule has been recognized in cases of mining property where the actual value of the property may be recovered.1 But where the party in possession has no clear legal right to the possession and the property is exposed to danger and loss, it is the duty of the court to appoint 1 Kelly v. Steele, 9 Ida. 141, 72 Pac. 887; Willis v. Corlies, 2 Edw. Ch. (N. Y.) 281. See, also, Thompsen v. Diffenderfer, 1 Md. Ch. 489; Furlong v. Edwards, 3 Md. 99; Kipp v. Hanna, 2 Bland (Md.) 26; Speights v. Peters, 9 Gill 472, 479; Vause v. Woods, 46 Miss. 120; Bryan v. Moring, 94 N. C. 694; Rollins v. Henry, 77 N. C. 467; Schlecht's Appeal, 60 Pa. St. 172; Lenox v. Notrebe, Fed. Cas. No. 8246b, Hemp. 225; Overton v. Memphis etc. R. Co., 10 Fed. 866, 3 McCrary 436. The court is slow to appoint a receiver of real estate where the legal title is in controversy, and one of the parties is in the peaceable possession under claim of right. This rule, however, does not apply where the property is alI Rec.-32 ready in the possession of a receiver, and a third party claiming adversely to the others asks to have the receivership continued. State v. Allen, 1 Tenn. Ch. 512. Where one party has a clear right to the possession of the property, and the dispute is as to the title only, the court will incline against disturbing the possession. Ellett v. Newman, 92 N. C. 519; Myers v. Estell, 48 Miss. 372, 401; Parkhurst v. Kinsman, Fed. Cas. No. 10760, 2 Blatchf. 78; Lenox v. Notrebe, Fed. Cas. No. 8246b, Hemp. 255. Where there are many creditors claiming the land of a debtor, some by deed and some by judgment, the land should be placed in the hands of a receiver, to be rented for the benefit of those who shall be entitled. Cole's Adm'r v. McRae, 6 Rand (Va.) 644. a receiver pending the litigation. On the other hand, where the title to property is in dispute and both parties to the litigation claim to be its owner in fee, the court will not appoint a receiver over it. And unless the plaintiff is able to show a reasonable probability of establishing title in himself, and that the property is in danger, the court will refuse to appoint a receiver even though it be shown that the defendant is insolvent.* The general rule in respect to the appointment of receivers over real estate may be stated as follows: A court of equity will not appoint a receiver of real estate, or of its proceeds, in the possession of defendants holding under a regular title during the pendency of the suit, although it has the power to do so in exceptional cases. But in order to bring a case within the exceptions to this general rule there must be clear proof (1) that there is imminent danger that unless a receiver is appointed the property, or its proceeds, will be materially deteriorated in value or wasted; (2) that the plaintiff will suffer irreparable loss from such deterioration or waste, and he can rarely suffer such loss when the defendants are solvent and abundantly able to respond to any damage they cause, or where they will give a good bond of indemnity against it; (3) that upon the pleadings and preliminary proofs there is a strong probability that the plaintiff will ultimately recover. This rule is based upon the idea that a court of equity will always endeavor to prevent the exercise of its jurisdiction by way of appointing a receiver as a substitute for the functions of a successful action of ejectment, a jurisdiction particularly applicable to a court of law. 2 Hlawacek v. Bohman, 51 Wis. 92, 8 N. W. 102. 3 Sengfelder v. Hill, 16 Wash. 355, 58 Am. St. Rep. 36, 47 Pac. 757. 4 Ryder v. Bateman, 93 Fed. 16. 5 Folk v. United States, 233 Fed. 177, 147 C. C. A. 183. (Opinion by Judge Sanborn sitting as judge of the Circuit Court of Appeals.) Where there is imminent danger of loss without an adequate rem |