(concurring specially). I concur in the result reached in the opinion prepared by Mr. Justice Robinson, for the following reasons: It clearly appears that the plaintiffs had a valid chattel mortgage lien on the grain seized by the receiver. I agree with Mr. *570Justice Hobinson that tbe alleged misdescription of tbe notes is not fatal to plaintiffs’ mortgage lien. It is undisputed that the plaintiffs ■are the owners and holders of the notes secured by the mortgage, and were such owners and holders at the time the mortgage was executed. The mortgage was properly executed and' filed for record, and was a valid lien on the grain involved in this case. The plaintiffs were not made parties to the action in which the receiver was appointed. The receiver was appointed in an action for the foreclosure of a mortgage upon the land on which the crops were grown. At the time such action was commenced and the receiver appointed, the grains in controversy were growing crops thereon, and the lien of plaintiffs’ mortgage had ■attached thereto. While the mortgage sought to be foreclosed in the ■action in which the defendant receiver was appointed did not cover the crops, I am by no means satisfied that the order appointing the receiver and directing him to take possession of the crops was void and can be either disregarded or attacked collaterally. The power of the ■district court to appoint a receiver in an action for the foreclosure of a mortgage is unquestioned. Comp. Laws 1913, § 7588. The mere fact that the order is irregular or erroneous on facts does not make it void. 17 Enc. Pl. & Pr. 753; 34 Cyc. 164 et seq. In the case at bar, however, the plaintiffs expressly recognized the appointment of the receiver, and obtained the court’s permission to bring the present action against him in his representative capacity. Having recognized the order as valid, it would seem that the plaintiffs are in no position to assert that it is invalid. 34 Cyc. 162.
The questions presented in this action could probably have been determined by the court on a motion in the receivership proceedings. Put the court was not required to pursue this method. It could permit ■or require that such issues be determined in an ordinary action.
It is unnecessary to détennine whether the court could in its discretion have refused to grant permission to maintain such action, as that question is not presented here. The fact is that the plaintiffs applied for, and the court gave, permission that such action be maintained. In this state, where forms of civil action have been abolished, there is no good reason why the trial court may not permit the ownership of property to which the receiver and some third party make conflicting *571■claims, to be determined in an action for a conversion of tbe property. Tbe court having granted permission to the plaintiffs to maintain such •action, they are entitled to an adjudication of their rights as established by the evidence, under the issues framed by the pleadings.
I agree with the contentions of the respondent that a receiver acting in accordance with the directions of the order of his appointment cannot be held individually liable for such acts, — at least not unless the order of appointment is void. It by no means follows, however, that an action will not lie against him in his representative capacity for injuries resulting to others from such acts. While the receiver is relieved from personal liability, actions may be brought against him in his official capacity, and the judgments obtained against him so entered as to be enforced against funds properly chargeable therewith in his hands, or under his control. High, Receivers, 3d ed. § 255.
I do not believe that the receiver in this case, having taken possession of property in accordance with the court’s order, should be held liable individually for so doing. But I do believe that the funds in his hands received from the sale of the property upon which the plaintiffs had a valid subsisting lien at the time the receiver was appointed should be paid over by him to the plaintiffs to the extent of their lien. The evidence in the case clearly shows that the plaintiffs had a first mortgage lien on such grain, and that the receiver marketed the grain, and has the moneys which he received therefor in his possession. I know of no reason why, in an action for conversion, the rights of the parties may not be determined upon equitable principles. See Wadsworth v. Owens, 17 N. D. 173, 177, 115 N. W. 667; Stavens v. National Elevator Co. 136 N. D. 9, 161 N. W. 559.
I agree with Mr. Justice Robinson that the plaintiffs should be awarded judgment for the amount of their mortgage lien and such of the farm laborer’s liens as they show to be valid. Said judgment, however, not to be a judgment against the receiver individually, but a judgment against him in his representative capacity as receiver, and to be satisfied out of the moneys in his hands received from the sale of the grain, after the payment by the receiver of the necessary expenses actually incurred in harvesting, threshing, and marketing the grain.