This is аn appeal.'from an interlocutory order appointing a-receiver pending an action pleaded in a cross-compláint to quiet title to certain real estate in Noble County. The cross-complaint in rhetorical paragraph 3 alleged that “These defendants allege and say that said Rallin P. Stanley [appellant] , has movqd onto said real estate and is now residing thereon; that he is in possession of said land, is claiming ownership thereof ■ and is attempting to rent the same and to collect the rents thereof; that he is materially injuring said real estate and is causing irreparable damagе thereto; that said acts of said Stanley and his possession of said real estate are without right and unlawful and that he continues to unlawfully withhold said premises from the owners named herein; that a receiver is nеcessary to conserve the value of said real estate and to prevent irreparablе loss and injury to the parties hereto.” The prayer of the cross-complaint asked that title be quieted and that a receiver be appointed pending . the action. A hearing was had on the issue of appointment of a receiver pending the action, and the trial court appointed a receiver as prayed.
The evidence at the hearing for the appointment of a reсeiver pendente lite disclosed that the plaintiff and certain other defendants to the complaint were the collateral heirs at law of Emma R. Stanley who owned the record fee simple titie to the real estate involved at the time of her death. She was married to Perry J. Stanley, the father оf Rallin P. Stanley, at the time she and her said husband, Perry J. Stanley, died, in an automobile collision with a truck on a рublic highway in Indiana on the 3rd day of June, 1947. The evidence showed that *693 the collision caused death in a common disaster, and that deaths were simultaneous.
Emma R. Stanley died testate, and a copy of her will as probated was introduced in evidence. She named her husband, Perry J. Stanley, as executor, and by Item I dirеcted him to pay her debts and funeral expenses and place a marker at her grave. Item II оf the will provided as follows:
“Subject to the provisions of Item I herein, I hereby give, devise and bequeath all of the property of which I may die the owner, whether, real, personal or mixed, and wherever found, to my husband, Perry J. Stanley, absolutely and in fee simple. This provision is made upon this condition, that the said Perry J. Stanley shall survive me.”
No letters of administration with will annexed were ever issued, but Orlo Werker was appointеd administrator of the estates of Emma R. Stanley, deceased, and Perry J. Stanley, deceased, and thе estates were still pending at the time of the hearing. Orlo Werker took charge of the farm for threе years and had it rented for 1950.
Under §1 of the Uniform Simultaneous Death Act (Ch. 49 of the 1941 Acts, §6-2356, Burns’ 1933 [1951 Supp.]), as well as the uncontradicted evidence in this case, the husband did not survive the wife, Emma R. Stanley, so title to the real estatе never vested in him, and therefore appellant as his son has no title to the real estate. 1
*694
Emma R. Stanley died leaving no children or issue by any deceased child. The cross-complainants proved а sufficient interest in the real estate to enable them to maintain an action for appointmеnt of a receiver pending the action. This court has held that the appointment of a receiver may be proper in a complaint for partition of real estate..
Rapp
v.
Reehling
(1889),
We can see no reason why the appointment of a receiver pending an action to quiet title is not proper under the facts in this record рursuant to clause three of §3-2601, Burns’ 1946 Replacement, which authorizes the appointment of a receiver, “In all actions when it is shown that the property, fund, or rents and profits in controversy is in danger of being lost, removed or materially injured.” See
Korf
v.
Howerton
(1925),
Appellant has cited no authority to support his contentiоn that the trial court erred in ruling on the admissibility of evidence, and therefore under Rule 2-17 (e) and (f) such errors, if аny, are waived.
*695 The interlocutory order appointing a receiver is affirmed.
Note.—Reported in
Notes
“Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this act.” Section 6-2356, Burns’ 1933 (1951 Supp.), Acts 1941, ch. 49, §1, p. 132.