(concurring in part and dissenting in part).
I concur in the opinion and holding in Case 3877. In view of my dissent, however, in Johnson v. Smith, Wyo., 455 P.2d *333244, I am constrained to dissent in Cases 3892 and 3942.
With respect to Case 3892, I expressed the view in Johnson, supra, that the lower court exceeded its jurisdiction and powers when it undertook to exercise control over the liquor license owned by Gladstone Hotel, Inc., and to empower the receiver to take possession of and operate the business authorized by such license. I also said that the concept of appointing a receiver to take possession of the mortgaged property and operate it as a going concern in the interest of the parties involved could not be given unlimited sway under the circumstances of this case.
It was apparent at that time to all concerned that the only segment of the business of the hotel of any economic value as a going concern was the liquor license and the business authorized thereby. It was my view that the court would have been well advised under the circumstances to have granted the motion of Gladstone Hotel, Inc., to dissolve the receivership, but that was not done and the consequences thereof are carried forward into the present proceeding. To intermingle in the receivership the liquor business of the hotel and the other segments of the hotel business that might legally have constituted the mortgaged property could not but lead to misunderstandings and difficulties in the conduct of the receivership as is now demonstrated by the present proceedings. No effort has been made by the beneficiaries of the trial court’s error, with the exception of income, to segregate the expenditures and obligations between what the court might lawfully have accomplished by the receivership and the illegal phase of the receivership. The fact is that under the supplemental order of the court on motion of plaintiff C. Hampton Smith authorizing and directing the receiver to let Smith take over the operation of the hotel the receiver was deprived of any income, made no expenditures, and incurred no liability resulting from such operations.
Apparently this proviso was to operate as a sort of safeguard to the interests of the Johnsons and the hotel corporation but that it failed to accomplish that result is self evident. The claims of the receiver against the Johnsons and of Smith are based upon and have their origin in Smith’s operation of the hotel business and under the circumstances, as I view it, the court was in error in allowing such claims.
With respect to 3942, it was the theory of the prevailing parties, the trial court, and the majority of this court, as I understand it, that the liquor license in some fashion or other became appurtenant to the real estate and this is borne out by the foreclosure proceedings by the Wyoming National Bank of both the real estate mortgage and the chattel mortgage. The liquor license and the right to operate the business authorized thereby was sold as a part of the real estate. Now to hold that the Johnsons as the sole owners of Gladstone Hotel, Inc., had no interest sufficient to entitle them to redeem from the foreclosure sale of the real estate is wholly inconsistent. The mere fact that the license under authority of the court was renewed in the name of the receiver is of no consequence. The right, title and interest of the hotel corporation in the liquor license and the preference right to renew under the provisions of § 12-11, W.S.1957, has never been legally terminated and consequently I would hold that the court erred in depriving the Johnsons from exercising their right to redeem.