§634. Mortgagee may have, pending foreclosure. In a suit for the foreclosure of a mortgage upon the property of a mining company, a receiver may be obtained, in case of mismanagement or fraud, pending the final decree of foreclosure. But to entitle the applicant to the remedy in such a case, there must usually have been a breach of the condition of the mortgage, or such acts as show a removal, disturbance or injury to the property, preceding the maturity of the debt.2

§ 635. At instance of mortgagor. A mortgagor may have a receiver where the mortgagee is in possession and is guilty of mismanagement or fraud, to the injury of the mortgagor's rights.3 And in a suit to redeem, the mortgagee will be charged with all proceeds of ore received and credited by proper outlays and the profits applied on the

arrangement for the sale or disposition of their interests which will allow a continuation of said work." Levi v. Karrick, 8 Iowa, 155; s. c. 13 Id. 344; M. M. D. 308.

1 Peek v. Trinsmoran Co., 2 Ch. D. 115. "The purchaser at judicial sale of a mining claim may, where the judgment debtor remains in possession, working the claims, and is insolvent, have a receiver appointed to take charge of the proceeds during the period allowed by statute for redemption." Hill v. Taylor, 22 Cal. 191. “The complaint stated that at a foreclosure sale plaintiff purchased an undivided one-third interest in a tract of mining ground; that the mortgagor was in possession and insolvent, and in connection with the owners of the other interests was working the claim and taking the proceeds; that before the expiration of the period of redemption the claim would be worked out and its value destroyed, and prayed judgment for the amount already received by the debtor since the sale, and that during the period of redemption a receiver be appointed to take charge of the proceeds: Held, that on the facts stated, plaintiff was entitled to the relief sought, and that an order sustaining a general demurrer to the complaint was erroneous." Id., M. M. D. 309. 2 Huntington v. Coal Assn., Set. 421; Lloyd v. Lloyd Co., Set. 189; MacSwinney, p. 210.

8 Rowe v. Wood, 2 J. & W. 555.

mortgage debt.1 But before payment of the debt a receiver will not be appointed, unless there has been fraud or mismanagement, and the mere fact that more outlays might have brought about better results, will not justify a receiver, as against a mortgagee in possession.2

§ 636. Defrauded purchaser, before hearing. Where a purchaser has entered into possession of a mine or quarry and then sues to rescind the sale, on account of fraud on the part of the vendor, if it cannot be worked at a profit and it is necessary to keep the operations going in order to prevent a forfeiture, or drowning of the mine, a receiver for the property will, generally, be appointed, on the filing of the suit, pending the final hearing of the cause.3 But, in such case, it would be necessary for the plaintiff to furnish the means to keep the concern going, until the final hearing, or, otherwise, a receiver would not be appointed.1

§ 637. Delay or laches will prevent. Where a receiver or manager for a mine or quarry is desired, on account of the necessary hazard attendant upon mining operations, and the extremely fluctuating value of the property, the application should be made with all reasonable promptness.5 Where the party applying for a receiver has neglected to do so until the mine has proven valuable, or where it has changed from an unprofitable to a paying concern, the application generally will be denied."

1 Tipton Green Col. Co. v. Tipton Moor. Col. Co., 7 Ch. D. 192.

2 Rowe v. Wood, 2 J. & W. 555.

3 Gibbs v. David, 20 Eq. 373; MacSwinney, p. 201.

4 Ante, idem.

5 MacSwinney on Mines, p. 117.

6 Shepard v. Oxendorf, 1 K. & J. 497.

CHAPTER XV.

SUITS TO QUIET TITLE.

SECTION 638. Equity's jurisdiction of such cases.
639. What title will support action.

640. Same-Title to minerals, after severance.
641. By and against whom maintainable.

642. Between lessor and lessee.

643. The adverse claim or title.

644. When plaintiff must be in possession.

645. Possession alone of mining claim sufficient.

646. Ditch and water rights.

647. What petition should contain.

648. Evidence and burden of proof.
649. Laches and estoppel.

1

Modern

§ 638. Equity's jurisdiction of such cases. suits to quiet title, or to remove cloud-which will be treated as interchangeable terms are but the outgrowth of the ancient quia timet doctrine of the English court of chancery, one of the original grounds of equity's jurisdiction. As the chancery court was originated but to furnish remedies in cases where the common law was inadequate to afford complete relief, this, like other equitable remedies, will be withheld, in cases where there is a complete, or adequate, legal action. Like all other actions in equity,

1 Some authorities distinguish suits to quiet title from actions to remove cloud. Huntington v. Allen, 44 Miss. 662; 17 Enc. Pl. & Pr. 279. But the distinction is not of great practical importance.

2 Bispham's Br. Eq., Sec. 438; Pom. Eq. Jur., Sec. 1394; Story's Eq., Sec. 826; Huntington v. Allen, 44 Miss. 662; Loring v. Hildreath, 170 Mass. 328; Logan v. Clough, 2 Colo. 328; 17 Enc. Pl. & Pr. 281; Kennedy v. Kennedy, 7 Wright, 417.

3 Lyon v. Alley, 130 U. S. 177; Fontaine v. Hudson, 93 Mo. 62; Bullion Mining Co. v. Eureka Hill Mining Co., 5 Utah, 3; Davis v. Settle,

the jurisdiction of the court is over the person of the defendant, except where the proceeding is enlarged by statute to cases of constructive service, for then the action, in its very nature, is one only in rem.2

§ 639. What title will support action. - The plaintiff must have some legal or equitable title or interest in the property to maintain the suit, for he cannot recover alone upon the want of title in the defendant,3 but just what estate he must show to support the action, depends largely upon the defendant's title, as he is required to show a claim superior to the defendant's, to recover. It is not necessary, however, that a party own the fee, to maintain the action; 5 a prima facie case is made, when a title superior to the defendants is established, and, where there is no better right shown, possession alone will justify the court to grant the proper relief. Originially the action could only

43 W. Va. 17; Abony Mining Co. v. Auditor-Gen., 37 Mich. 391; Graham v. Pancoast, 6 Casey, 89; Steward's App., 78 Pa. St. 88; 12 Mor. Min. Rep. 491.

1 Hart v. Samson, 110 U. S. 151; Remer v. Mackay, 35 Fed. Rep. 86; Dillon v. Heller, 39 Kan. 599. But see, contra, Otis v. De Baer, 116 Ind. 531; Prentice v. Duluth Co., 58 Fed. Rep. 437; 17 Enc. Pl. & Pr. 294. 2 Dillon v. Heller, 39 Kan. 599.

3 Dick v. Foraker, 155 U. S. 414; Whipple v. Gibson, 158 Ill. 339; Jackson v. Kettle, 34 W. Va. 207; Stanton v. Catron, 8 N. M. 355; Rutherford v. Ullman, 42 Mo. 216; Hall v. Melvin, 62 Ark. 439; Head v. Fordyce et al., 17 Cal. 149; 12 Mor. Min. Rep. 470.

4 Dick v. Foraker, supra; Raynor v. Lee, 20 Mich. 384; Kilts v. Austin, 83 Cal. 167; 17 Enc. Pl. & Pr., p. 301.

5 Peirce v. Felter, 53 Cal. 18.

6 Loomis v. Roberts, 57 Mich. 284; 17 Enc. Pl. & Pr. 301.

Gage v. Schmidt, 104 Ill. 106; Horn v. Jones, 28 Cal. 194; Pralus v. Pac. Gold & Silver Mining Co., 35 Cal. 30; 12 Mor. Min. Rep. 478. Action will lie, where extrinsic evidence is necessary to impeach a patent from the United States. Morris v. U. S., 174 U. S. 196; 43 L. Ed. 947; Davenport v. Stephens, 95 Wis. 456; Ogden v. Armstrong, 168 U. S. 224; Rich v. Broxton, 158 U. S. 375; Cunningham v. Brown, 39 W. Va. 588.

be maintained, by a party who held the legal title,1 and such is still the general rule, in the Federal courts; 2 but although the holder of only an equitable title should first be held to enforce the trust and acquire the legal title,* statutory innovations and constructions have now quite generally extended the remedy to the holder of an equitable title too. One claiming by adverse possession only is held entitled to maintain the action. And one who has parted with his title, has been said to have an interest sufficient to enable him to sue, provided he had executed covenants of warranty, in his sale of the property.

"In an action under St. 1889, Ch. 442, the court cannot consider or determine prescriptive rights of parties to land or easements, but only such rights as appear of record." Crocker v. Cotting (Mass.), 63 N. E. Rep. 402.

1 Parley's Park Silver Min. Co. v. Kerr, 130 U. S. 256; Bordon v. Land &c. Co., 157 U. S. 330; Sulleff v. Smith, 58 Kan. 560; 17 Enc. Pl. & Pr. 303.

2 Parley's Park Silver Mining Co. v. Kerr, 130 U. S. 256; Frost v. Spitley, 121 U. S. 314. But see Van Wyck v. Knevols, 106 U. S. 370; So. Pac. Co. v. Stanly, 49 Fed. Rep. 265; cited 17 Enc. Pl. & Pr. 303. 3 Harrigan v. Mowry, 84 Cal. 456; Bryan v. Tormeg, 84 Cal. 126. 4 Mason v. Black, 87 Mo. 329; Morris v. Bank, 17 Colo. 231; Jackson v. Tatebo, 3 Wash. 456; Neal v. Allen, 55 Kan. 638; Hayford v. Wallace (Cal.), 46 Pac. Rep. 293; 17 Enc. Pl. & Pr. 304.

McRea v. Gardner, 131 Mo. 599; Horms v. Krantz, 167 Ill. 421; Clemmons v. Cox, 116 Ala. 567; 420 Mining Co. v. Bullion Mining Co., 3 Sawy. U. S. 634.

6 Jackson v. Kittle, 35 W. Va. 207; Remer v. Mackay, 35 Fed. Rep. 86; Begale v. Hersheg, 86 Mich. 130; Oberlon Land Co. v. Dunn, 56 N. J. Eq. 749. But see Heney v. Pesolt, 107 Cal. 58; Glas v. Goodrich, 175 Ill. 20; 17 Enc. Pl. & Pr. 302. Lessees, mortgagees, trustees, assignees, lienholders, attaching creditors, cotenants, reversioners, remaindermen, executors and administrators, execution purchasers, and many others are enumerated as competent to sue in 17 Enc. Pl. & Pr. 298. Where the plaintiff's title is that of execution purchaser of a mining claim and the petition does not show that the judgment debtor had title to the claim, the suit should be dismissed. Hardware Co. v. Frank, (Mont. 1901), 65 Pac. Rep. 1.