In an opinion just announced from this bench, the following pertinent observation was made: "The foreclosure of the mortgage after the filing of the original bill did not oust the court of its jurisdiction, and the foreclosure, while not absolutely suspended, is yet subject to the equity of the bill and may be set aside by the court if the complainant is awarded relief, and a purchaser at such mortgage gale does so subject to the right of the court in the pending cause to ignore or set aside said sale. McDermott et al. v. Halliburton et al., 219 Ala. 659, 123 So. 207; Brown et al. v. Bell, 206 Ala. 182, 89 So. 659; Pattillo v. Tucker, 216 Ala. 572, 113 So. 1." Taylor v. Hoffman et al., ante, p. 420, 157 So. 851.
Equity Rule 36; Code 1940, Tit. 33, §§ 37, 46; Tit. 39, §§ 54, 56-60; Tit. 47, § 181; Standard Sanitary Mfg. Co. v. Aird, 221 Ala. 520, 129 So. 285. A bill in equity will lie where the owner of property submits himself to the jurisdiction of the court to ascertain validity of alleged mortgage and offers to do equity and pay amount decreed to be due on debt; and court has wide discretion to enjoin foreclosure of mortgage pending final determination of cause. Guaranty Trust Co. of New York v. Gay, 240 Ala. 35, 196 So. 895; Castleman v. Knight, 215 Ala. 429, 110 So. 911; Union Central Life Ins. Co. v. Thompson, 229 Ala. 433, 158 So. 852; Carroll v. Henderson, 191 Ala. 248, 68 So. 1; Fair v. Cummings, 197 Ala. 131, 72 So. 389; Brown v. Bell, 206 Ala. 182, 89 So. 659; McDermott v. Halliburton, 219 Ala. 659, 123 So. 207. Court of equity may issue injunction without bond to prevent impairment and defeat of just exercise of its undoubted jurisdiction to protect and enforce its lawful orders and to preserve title made by such orders. 28 Am.Jur. 434; 32 C.J., Inj., § 505; Jones v. Ewing 56 Ala. 360; Thorington v. Gould, 59 Ala. 461; Fed. Rules Civ.Prac. 65(c); Swift v. Black Panther O. G. Co., 8 Cir., 244 F. 20, 156 C.C.A. 448; Doyne v. Seattle, 8 Cir., 112 F.2d 155; Harvey Brok. Co. v. Ambassador Hotel, D.C., 6 F. Supp. 345; Grooms v. Brown-Mark Co., 236 Ala. 655, 184 So. 698.
The appointment of a receiver is not mere matter of course; it must be clearly shown by allegations and evidence that there is actual necessity therefor, which is not satisfactorily shown in this case. Parker v. Williams, 230 Ala. 437, 161 So. 512; Taylor v. Hoffman, 229 Ala. 420, 157 So. 851; McDermott v. Halliburton, 219 Ala. 659, 123 So. 207; 19 R.C.L. 561; Skidmore v. Stewart, 199 Ala. 566, 75 So. 1; Scott v. Ware, 65 Ala. 174; Ashurst v. Lehman, 86 Ala. 370, 5 So. 731; Jackson v. Hooper, 107 Ala. 634, 18 So. 254. B. W. Smith, of Samson, and O. S. Lewis, of Dothan, for appellee.
The foreclosure of the mortgage after the filing of the original bill did not oust the court of its jurisdiction, and the forclosure, while not absolutely suspended, is yet subject to the equity of the bill and may be set aside by the court if the complainant is awarded relief, and a purchaser at such mortgage sale does so subject to the right of the court in the pending cause to ignore or set aside said sale. McDermott v. Halliburton, 219 Ala. 659, 123 So. 207; Brown v. Bell, 206 Ala. 182, 89 So. 659; Pattillo v. Tucker, 216 Ala. 572, 113 So. 1, and cases there cited. Moreover, the record discloses that other parties besides Hoffman are part owners of the mortgage debt, and an accounting and adjustment of the respective rights of the parties as to the proceeds of a sale in case the complainant does not redeem is peculiarly within the province of a court of equity.
The order of the trial court appointing a receiver was vacated and the receiver discharged by order of the Supreme Court. Having shown this fact, plaintiffs made out their case and were entitled to recover. McDermott v. Halliburton, 219 Ala. 659, 123 So. 207; Code 1923, §§ 10115, 10116; Pagett v. Brooks, 140 Ala. 257, 37 So. 263; Sullivan Timber Co. v. Black, 159 Ala. 570, 48 So. 870; 23 R. C. L. 45; Lyon v. United States Fidelity Guaranty Co., 48 Mont. 591, 140 P. 86, Ann. Cas. 1915D, 1036, 1040; Dreyspring v. Loeb, 113 Ala. 263, 21 So. 73. Ernest Parks, of Scottsboro, for respondents.
In order to entitle the mortgagee, out of possession and before foreclosure, to have a receiver appointed to take charge of the land and crops, in absence of allegation and proof of fraud or misconduct, it is essential to prove inadequacy of the mortgaged property to pay the mortgage indebtedness, or insolvency of the mortgagor or his estate. Skidmore v. Stewart, 199 Ala. 566, 75 So. 1; Lindsay v. Amer. Mtg. Co., 97 Ala. 411, 11 So. 770; Scott v. Ware, 65 Ala. 174; Ashurst v. Lehman, 86 Ala. 370, 5 So. 731; Jackson v. Hooper, 107 Ala. 634, 18 So. 254; 27 Cyc. 1624; Hayes v. Jasper L. Co., 147 Ala. 340, 41 So. 909; Warren v. Pitts, 114 Ala. 65, 21 So. 494; 19 R. C. L. 369; 72 Am. St. Rep. 78 note; Petchey v. Allendale L. Co., 216 Ala. 167, 112 So. 818; McDermott v. Halliburton, 219 Ala. 659, 123 So. 207; 2 Jonson Mortgages, § 1516; Cortleyeu v. Hathaway, 11 N.J. Eq. 39, 64 Am. Dec. 478; Myton v. Davenport, 51 Iowa, 583, 2 N.W. 402; Jordan v. Jordan, 121 Ala. 419, 25 So. 855; Schilcer v. Brock, 124 Ala. 626, 27 So. 473. Ernest Parks, of Scottsboro, for appellees.
The final decree could vacate that sale if necessary to enforce the equity of redemption". Marsh v. Wayland, Ala., 96 So.2d 805, 808; Adams v. Whitehead, 234 Ala. 389, 175 So. 356; Hall v. Metropolitan Life Ins. Co., 225 Ala. 455, 143 So. 452; Macke v. Scaccia, 222 Ala. 359, 132 So. 880; McDermott v. Halliburton, 219 Ala. 659, 123 So. 207; Fair v. Cummings, 197 Ala. 131, 72 So. 389; Carroll v. Henderson, 191 Ala. 248, 68 So. 1; Johnson v. Smith, 190 Ala. 521, 67 So. 401. 266 Ala. 402.
The sale pending the suit does not affect the rights of complainants asserted in the bill. The final decree could vacate that sale if necessary to enforce the equity of redemption. Johnson v. Smith, 190 Ala. 521, 67 So. 401; Carroll v. Henderson, 191 Ala. 248, 68 So. 1; McDermott v. Halliburton, 219 Ala. 659, 123 So. 207; Fair v. Cummings, 197 Ala. 131, 72 So. 389; Macke v. Scaccia, supra; Hall v. Metropolitan Life Ins. Co., 225 Ala. 455, 143 So. 452; Adams v. Whitehead, 234 Ala. 389, 175 So. 356. We think that insofar as appellant has argued the matter, the ruling on the demurrer is without error and should be affirmed.
In Union Central Life Ins. Co. v. Thompson, 229 Ala. 433, 157 So. 852, the foreclosure of the mortgage after filing of a bill to enjoin foreclosure did not oust the court of jurisdiction, but remained subject to equity of the bill and may be ignored or set aside by the court, if complainant is awarded relief. See, McDermott v. Halliburton, 219 Ala. 659, 123 So. 207; Patillo v. Tucker, 216 Ala. 572, 113 So. 1; Brown v. Bell, 206 Ala. 182, 89 So. 659; Alabama Power Co. v. City of Scottsboro, 238 Ala. 230, 190 So. 412(25). In the case of Alabama Power Co. v. Sheffield, 232 Ala. 53, 166 So. 797, cited by appellees, a bill was filed by appellant seeking to enjoin the performance of a certain contract between it and the United States.
As the hearing before the chancellor was de novo (Meyer v. Thomas, supra), it is proper that the amendment to the bill filed after the appointment by the register, but prior to the hearing before the chancellor, be considered. But so considered, we are of the opinion the appointment of the receiver was not justified. It is universally recognized that the power of appointment of a receiver is a delicate one, to be exercised with great caution, and to be resorted to only in extreme cases, where it appears complainant will sustain irreparable loss. Lost Creek Coal Co. v. Scheuer, 222 Ala. 400, 132 So. 615; McDermott v. Halliburton, 219 Ala. 659, 123 So. 207; Taylor v. Hoffman, 229 Ala. 420, 157 So. 851; McDermott v. Halliburton, 220 Ala. 553, 126 So. 854. The appointment is a matter of sound judicial discretion, to be exercised in view of all the circumstances of the particular case, and one of the most material circumstances, without which the court would hardly make the appointment, is the reasonable probability that the plaintiff, asking for a receiver, will ultimately succeed in obtaining the general relief sought for by his suit. Warren v. Pitts, 114 Ala. 65, 21 So. 494; Hayes v. Jasper Land Co., 147 Ala. 340, 41 So. 909; 72 Am.St.Rep. 33. Ordinarily a person cannot have a receiver appointed over his own property.