Opinion or the Court,
Gary, P. J.This is an appeal under the act of June 14, 1887, from an interlocutory order appointing a receiver. The appellee filed his bill to redeem from what he alleged was a mortgage to the appellant, though in the form of a warranty deed. The appellant denied that the conveyance was a mortgage, alleging that it was an absolute conveyance in fact as well as in form, with an agreement to re-convey upon terms. We need not inquire which is right. The bill alleged, and the appellee tried to prove, mismanagement of the property by the appellant. Whether the proof was sufficient, we will not consider.
The appointment of a receiver seems to have been prompted by the understanding of the court that on a previous day the appellant had, before the court, agreed to some terms which, on the day the receiver was appointed, he would not abide by.
However litigious a mortgagee in possession may be, so long as anything is due him, the possession can not be taken from him and given to a receiver. Jones on Mort„, Sec. 15 IT; High on Deceivers, Sec. 654; Beach on Deceivers, Secs. 80, 81, 550; Bolles v. Duff, 35 How. Pr. Rep. 481.
If the appellee establishes his claim that the transaction was a mortgage, it is conceded that about $30,000 is due to the appellant.
That indebtedness gives ample security to the appellee, and in making up the accounts the appellant can be charged for everything that he ought to be charged with, and any improper charges made by him, may be disallowed.
If the transaction does not turn out to be a mortgage, the bill is all wrong, and no receiver can be appointed under it. In any aspect of the case the order is wrong, and it is reversed with directions to restore the possession of the premises in controversy to the appellee, if the receiver has taken possession.