2 N.D. 206 | N.D. | 1891
The opinion of the court was delivered by
On June 29, 1891, after issue was joined in this, action by service of an answer denying the material allegations of the complaint, but before trial, the district court, on plaintiff’s application and by an order made herein, wholly ex parte, appointed a receiver of certain growing crops which were sown by" defendant upon the lands in question, upon which the defendant then resided and long had resided. Upon due notice defendant moved in the district court to vacate the order appointing a receiver. The court denied the motion to vacate such order, and in the order denying the motion the district court enlarged the powers of the receiver by making him receiver of the land in controversy, as well as the crops thereon. The case comes to this court on appeal from each and all of said orders.
The action is brought in equity, to quiet title to land. The specific relief prayed for by plaintiffs as follows: “ For judgment decreeing that these plaintiffs are the equitable owners of the land; that defendant has no right, title, or interest therein; that the defendant be restrained, during the pendency of the action, and permanently restrained from tilling said land, or in any-manner interfering with the same. Plaintiffs also pray generally for other and further relief.” The complaint further states, in substance, that the land — the S. W. -J of section 7, township 146, range 50 west — is in Traill county, and situated within fifty miles of the line of the Northern Pacific Railroad as such road is finally located and built and situated, within the ten-mile limit of said railroad, commonly called the “ indemnity belt.” That said tract is “ among the lands, from which the said company were given the right to select lands in lieu of lands which
Defendant answered the complaint, and, after admitting the incoporation of the Northern Pacific Railroad Company, further answered: “Defendant further answering the complaint herein, denies that he has any knowledge or information thereof sufficient to form a belief, and, therefore, denies each .and ever allegation not specifically admitted or otherwise denied. Defendant alleges that on the 20th of September, 1887, he, being a married male person and the head of a family., and over the age of twenty-one years, and a citizen of the United States, made settlement in person with his family, consisting of a wife and four children, upon the land described in the complaint. That said land was and is public land of the United States, not .mineral, and subject to pre-emption. That said lands, with other lands, were declared to be a part of the public domain, and open for settlement under the general laws of the United States, by an order of the honorable secretary of the interior, . duly made on August 15, 1887. That defendant settled peaceably upon said land. That it was then wholly unoccupied, wild prairie land, and without any improvements of any kind or nature whatsoever, and this defendant settled peaceably upon said land as a pre-emptor, and duly filed his declaratory statement of his intention to claim said land as a pre-emption right .under the laws of the United States in the United States land office at Fargo, N. D., on the 20th of October, 1887. That he then established his residence on said land, and has inhabited, cultivated, and improved the same continuously since said date, and has erected a dwelling house, barn, and other build
We have no doubt for various reasons that it was an abuse of discretion to make the ex parte order appointing a receiver of the crops sown and planted by defendant upon lands where defendant long had resided. The affidavit upon which the order was made showed no exigency which would justify such an arbitrary and harsh proceeding, if, indeed, it would be proper' in such a case to appoint a receiver at all before judgment. Where an injunction is ample to protect property until a motion can be made for a receiver, it is manifestly improper to deprive a party of possession without notice. McCarty v. Peake, 18 How.
It is doubtless true that receivers are sometimes — though very rarely — appointed ex parte. Our statute (§ 5017, Comp. Laws), contemplates such a possibility. But to justify such a summary proceeding the facts and circumstances must create a very grave exigency, and above all, the application must be of such a strong and convincing nature that the court is reasonably certain to decide the case finally in favor of the applicant. “In suits between conflicting claimants of land, especially between parties claiming under legal titles, a receiver will not ordinarily be appointed.” 3 Pom. Eq. Jur. § 1333. See, generally, High, Bee. § 111; Sedg. & W. Tr. Title Land, § 631. Plaintiff does not show a case coming within either of the classes mentioned in the statute (§ 5015, Comp. Laws), in which a receiver is expressly authorized, nor do the facts set out show that this is a case where “ receivers have heretofore been appointed by the usages 'of courts of equity.” Railroad Co. v. Iosco Circuit Judge, 44 Mich. 479, 7 N. W. Bep. 65. But the appointment of the receiver in the case at bar, even if notice had been given and a hearing granted, would have been in flagrant violation of established practice in such cases. The plaintiffs’ equities, as stated in the complaint, are not supported by the plaintiffs’ affidavit or otherwise; nor is the complaint verified by any person who claims to have personal knowledge of the facts set out. The verification is made on information and belief by one of plaintiffs’ attorneys, if the pleading can be properly considered as verified by an attorney where, as in this case, the affidavit fails to state, as the statute requires, why the attorney verified it. The ex parte order shows on its face that it was based on an affidavit of the same attorney who attempted to verify the complaint; but such affidavit, as already stated, does not anywhere allude to the original grounds of the action. But if the complaint was before the court, and constituted a part of the showing made by plaintiff, the result is that the ex parte order ousting defendant of the possession of crops planted by him and growing upon the land upon which he had long resided, and the orders enlarging the powers of the re