been had; and that, unless a receiver be appointed, the said property will be wholly lost to plaintiffs. With this complaint, the plaintiffs served a notice, on September 25, 1893, upon the local agent of the defendant, that an application would be made on September 27, 1893, at 10 o'clock a. m., in the equity department of the superior court, before the judge presiding in that department, for the appointment of a receiver. The complaint and sunmons were the only papers served upon the defendant. Defendant appeared at the time indicated in the notice, and asked for a continuance, for the purpose of procuring affidavits from Minneapolis, where the main office was located, to oppose the application. A continuance was granted, but, pending a hearing upon the application, a temporary receiver was appointed, who seems to have taken possession of the property in dispute. On October 17, 1893, the matter came on for hearing before the court, and counsel for plaintiff's proposed to read a number of affidavits in support of some of the allegations of the complaint, which had not been served upon or seen by defendant's attorney. Objection was made by defendant to the reading of the affidavits, on the ground that they had never been served, and that the defendant had no notice of their contents prior to the time when they were offered in evidence. The court overruled the objection, and permitted the affidavits to be read, granting the defendant an exception. Objection was also made by defendant that the petition failed to charge or allege insolvency on the part of the defendant association, or that there was nothing due or owing to it, or that plaintiffs had no adequate remedy at law. The defendant was permitted to read affidavits on its behalf, and from those affidavits it appears that certain sums due from plaintiffs to defendant had not been paid, and that the plaintiffs were at that time in default in the sum of about $2,500. Upon the hearing, the court appointed a permanent receiver, over the objection of the defendant, with power to take charge of and collect the rents of the property theretofore in the possession of the defendant. It is contended by appellant that the court had no right or power to appoint a receiv er in this instance, because the facts show that the appellant was a mortgagee, rightfully in possession of the premises which the respondents seek to obtain possession of in this action. At common law, a mortgagee in possession of real property, after condition broken, was deemed the absolute owner, and, as such, had a right to the possession of the property mortgaged. In fact, the mortgage was itself considered a conveyance of the property mortgaged, subject to being defeated upon payment of the amount due thereon. The mortgagee, even before condition broken, had a right to take possession of the mortgaged premises, and it log ically followed, and the courts held, that ejectment would not lie against the mortgagee in possession. Under our statute, however, and the statutes of several other states, a mortgage is not considered a conveyance, but is deemed simply a lien, and the mortgagor is the owner of the incumbered premises, and cannot be dispossessed except by foreclosure and sale. But while he has a right to remain in possession of the mortgaged premises until sale thereof, he also has a right to place his mortgagee in possession; and if he does so for a valuable consideration, he is bound by the stipulations of his contract. In this case it appears that the appellant took possession of the premises in dispute with the direct assent and knowledge of the respondents, and, if it does not appear that such possession was obtained by fraud, it cannot be ousted in this proceeding, through the medium of a receiver or otherwise. We think the proof clearly shows that the possession of the appellant was not obtained by fraud, but that the respondents were aware of all of the conditions, as well as of the effect, of their contract. It also appears from the undisputed evidence filed on behalf of the appellant that the respondents, at the time the receiver was appointed, were indebted to the appel lant in the sum of $2,500, as above stated; and there is nothing disclosed by the evidence which warranted the appointment of a receiver in this case to take the possession and control of the premises from the appellant. It seems that the main allegations relied upon as showing that the appellant obtained fraudulent possession of the premises are that the respondents did not recognize the validity and binding effect of the contract for possession after they became aware that it had not been formally signed and executed by the appellant, and that the appellant never advanced the $7,500 specified in the contract. It would appear from the allegations in the complaint, as well as from the evidence, that the respondents did recognize and act upon the contract prior to the time they discovered that it had not been signed by the appellant; and we think the fact that it was not signed is not proof of fraud on the part of appellant, nor is it, under the circumstances of the case, in any wise material. The appellant recognized the contract and took possession and control of the premises under it, and placed it upon record. It thus became binding upon the appellant, and it could not thereafter be heard to say that it was not its agreement. It was therefore a valid agreement as to both parties. Muscatine Waterworks Co. v. Muscatine Lumber Co. (Iowa) 52 N. W. 108; Dows v. Morse (Iowa) 17 N. W. 495; Gas Co. v. Kibby (Ind. Sup.) 35 N. E. 392. And the evidence shows, as matter of fact, that the $7,500 was advanced by appellant in accordance with the terms of the agreement, and expended by it in completing the build ing and in paying debts theretofore contracted. There having been no fraud practiced by the appellant in obtaining the possession of the premises in question, and it being undisputed that the respondents were indebted to the appellant, and it appearing that the appellant was rightfully in possession, the court had no right to deprive it of its possession by the appointment of a receiver. Beach, Rec. § 80; High, Rec. § 419. Nor do we think the evidence shows that the building was injured or not properly constructed through any fault of the appellant or its agents. Nothing was done by the appellant, while in possession, that it was not clearly authorized to do by the express terms of the agreement. The action is in substance and effect an action of ejectment to recover the possession of the property rightfully, as we have said, in the possession of the defendant; and the mere allegations of fraud, mismanagement, and incompetency, without corroborative proof, do not entitle the respondents to the equitable relief demanded. Courts will not appoint a receiver except when it is necessary either to prevent fraud, protect property from injury, or preserve it from destruction, and mere allegations of these facts are not sufficient to authorize a court to appoint a receiver. The plaintiff must establish such facts, and make out a strong case for relief, before such appointment will be made. Baker v. Backus, 32 Ill. 79; Roberts v. Sutherlin, 4 Or. 220; Phyfe v. Riley, 15 Wend. 248; Frink v. Leroy, 49 Cal. 314; Hamilton v. Transit Co., 3 Abb. Pr. 255. It is well settled that a mortgagee in possession, so long as there is any question whether the mortgage debt has been paid in full, cannot be dispossessed by an action in ejectment. Jones, Mortg. §§ 674, 1093; Moulton v. Leighton, 33 Fed. 143. If it were true that the appellant was committing waste upon the premises, that fact alone would not be sufficient to authorize the appointment of the receiver. Second Judicial District Court (Mont.) 34 Pac. 609. In such a case the plaintiff could maintain an action at law for damages, or defendant might be restrained by injunction. There is no allegation or proof of insolvency on the part of the appellant. On the contrary, the proof shows that it is able to respond in damages for any injury it may cause to the premises, and therefore equitable relief is not necessary. Again, it appears that the respondents have acted under this contract and received benefits from it, and they are therefore estopped from denying its existence and force. State v. Objection is also made by the appellant that the respondents had no right to read affidavits upon the hearing of the motion for the appointment of a receiver without first serving them upon the appellant, and, in our opinion, this objection is well taken. It is said in High on Receivers (section 84), that the motion should properly be founded on EFFECT OF APPEAL-COMPENSATION OF RECEIVER. 1. The perfecting of an appeal from an order appointing a temporary receiver of mortgaged property, and the filing of a supersedeas bond, divest the court appointing him of power to make any further order or take any steps in respect to the receivership, and deprive the receiver of any further power to act under such appointment. 2. A temporary receiver appointed to take charge of mortgaged property, in violation of the contract rights of the mortgagee, is entitled to be allowed out of the funds in his hands for necessary and proper disbursements while in charge of the property, but not for compensation for his services, for which he must look to the party at whose instance he was appointed; but such receiver's attorneys, employed by leave of the court, are entitled to a reasonable compensation. Appeal from superior court, Spokane county; Jesse Arthur, Judge. Action by Jennie Brundage and Byron Brundage against the Home Savings & Loan Association of Minneapolis, Minn., and the Northwestern & Pacific Hypotheek Bank, for the appointment of a temporary receiver of certain mortgaged property, for its restitution, and damages for withholding it, and for any other just and proper relief. From an order appointing such receiver, the loan association appeals. Reversed. Samuel R. Stern and Lucien J. Birdseye, for appellant. ANDERS, J. This is an appeal from an order made by the superior court of Spokane county, discharging the receiver of certain mortgaged real property, granting him and his counsel allowances for services and disbursements, and passing the receiver's accounts. The court below, on September 27, 1893, appointed one Morris Fox temporary receiver of the property described in the complaint in an action then pending; and upon October 17, 1893, after hearing upon affidavits, Fox's appointment was made permanent. He qualified on October 19, 1893, and an appeal from the order thus appointing him was taken and perfected on October 21, 1893, and a supersedeas bond given and filed on that day. The order appointing Fox temporary receiver limited his powers to the collection of rents, and reads as follows: "Therefore, it is ordered that Morris Fox be, and is hereby, appointed temporary receiver over said property, and all moneys due and becoming due from said property, for the purpose of receiving, collecting, and holding the rents and income from the said property, and that he receive, collect, and hold the said rents, income, and moneys derived therefrom until the further order of this court, and subject to the orders of this court." By virtue of this order, Fox collectted October 1, 1893, rent amounting to $67, and on October 17, 1893, insurance moneys amounting to $96.97, and made no other collections until after November 1, 1893, which was after the supersedeas bond had been given and an appeal from the order appointing him perfected. Notwithstanding the fact that the appeal had been duly perfected, the court permitted said Fox to testify as to matters collected and matters attended to after this time, and confirmed his report with regard thereto, all against the objection of the appellant, duly entered. The court allowed the receiver for his services $175, and to two attorneys, whom he claimed it was necessary to employ (although not partners), $100, and ordered the discharge of the receiver and his bondsmen, and passed his accounts, including items received and expended both before and after the perfecting of the appeal. Aside from the objections to receiving and passing upon the report of the receiver and his accounts, it was urged by the appellant that the amounts allowed were grossly excessive, and wholly unwarranted by the facts or by law; and the point is made here that the superior court had no right to make any order after the appeal from the order appointing the receiver was perfected, and a supersedeas bond filed. It was said by this court in State v. Superior Court, 6 Wash. 112, 32 Pac. 1072, that "the effect of giving the notices of appeals and supersedeas bonds as aforesaid was to remove said matters to this court, and to deprive the superior court of any jurisdiction to proceed in the premises otherwise than as to the preparation thereof for a hearing in this court in pursuance of said appeals." And what was then said was based upon the provisions of our statute, which are that "when such bond, further conditioned as hereinabove prescribed, has been filed, the appeal shall operate so long as it shall remain effectual under the provisions of this act to stay proceedings upon the judgment or order appealed from." Laws 1893, p. 123. From this it clearly appears that the court below had no right to make any order or take any steps in regard to the receivership after the appeal to this court had been perfected. It follows that the receiver himself, being an officer of the court, was likewise deprived by the appeal of any further power to act, and everything done by nim thereafter was done without authority of law. Upon the appeal to this court from the order appointing this receiver, we held that the court was not warranted in making the appointment. It therefore necessarily follows that the possession of the receiver was wrongful, and that the allowances made by the court as compensation for his services were not properly chargeable to the funds in his hands, for the reason that such funds were the property of the appellant herein under the contract authorizing it to collect the rents and profits, and have exclusive control of the property placed in the custody of the receiver. It is the policy of our law that the losing, and not the winning, party shall pay the costs. We see no objection to allowing the receiver the amount of his necessary and proper disbursements while in charge of the property, but for his own compensation he must look to the respondents, at whose instance he was appointed. It seems that the attorneys employed by him were so employed by leave of the court, and they will be entitled to reasonable compensation for their services. But, inasmuch as it does not appear that their services resulted in the collection of the money sued for, we think the amount allowed, viz. $100, was larger than it should have been. For aught that appears in the evidence, all that was done by them was to institute a suit for the collection of $300, due for rent. For these services, we think $50 is an ample compensation. The order of the court discharging the receiver and his bondsmen, and allowing and passing the accounts of the receiver, is reversed; and the cause is remanded to the court below, with directions to disallow the receiver's claim for personal services, and to reduce the amount of the compensation of his attorneys to the sum of $50. HOYT, C. J., and SCOTT, J., concur. (11 Wash. 254) ARTHUR v. SHERMAN et al. (Supreme Court of Washington. Feb. 20, 1895.) ACTION ON REPLEVIN BOND - SIGNATURE BY 1. When plaintiffs in replevin take possession of the property under bond, they cannot allege that their signatures were affixed by an unauthorized agent. 2. Signatures to a bond will be presumed to have been written in the order in which they ap pear. 3. Sureties on a bond, who sign under what purports to be the signature of the principal, thereby adopt such signature and are estopped to deny its genuineness. 4. A sheriff, holding a special execution for the return of property taken under a replevin bond, called on defendants, who informed him that they had nothing to do with it. He afterwards found the property in the hands of a third person, who allowed him to check up the different articles, but forbade their removal. Held, that this was not such a return of the property as would excuse plaintiffs from liability on their bond. 5. The failure of plaintiff to return goods taken under a replevin bond after the suit was decided against him is not excused by the fact that he was prevented from returning the goods by an injunction, issued by a stranger after proper demand was made by defendant for their return. Appeal from superior court, Pierce county; John C. Stallcup, Judge. Action by J. M. Arthur against Tabor A. Sherman and others to recover upon a bond given by the defendants in an action of replevin. From a judgment for defendants, plaintiff appeals. Reversed. Greene & Turner, for appellant. Crowley, Sullivan & Grosscup, for respondents. HOYT, C. J. This action was brought to recover upon a bond given by the defendants in a replevin action to secure the return to them of property of which the plaintiff had obtained possession by filing the bond and affidavit required by the statute. Three reasons are suggested why the action could not be maintained: First, that the bond was invalid; second, that, under the execution issued in favor of the plaintiff in the replevin suit, such action was taken by the plaintiff, or the sheriff in his behalf, as to be equivalent to a return of the property by the defendants, in compliance with the conditions of the bond; and, third, that the defendants were prevented from making return of the property by injunction proceedings instituted by one claiming adversely to plaintiff and defendants in the replevin action. The objection to the bond is founded upon the fact that the names of the principals were signed thereto by G. L. McKay, their attorney, who, it is claimed, was not authorized by them so to do. Elaborate argument has been made by counsel in regard to the validity of the bond, but the view we take of the contract of the sureties will make it unnecessary for us to discuss many of the questions argued by counsel. By means of the bond, the principals obtained possession of the property; hence they are bound by its conditions. The only question is as to the liability of the sureties. It is contended on their behalf that, since the signatures of the principals were unauthorized, the bond and their liability as sureties thereon must be construed as though there had been no signature by the principals. This contention cannot be sustained. In the absence of proof to the contrary, it will be presumed that the signatures to the bond were placed thereon in the order in which they appear; and, since the signatures of the principals by their attorney appear upon the bond before those of the sureties, it must be presumed that such signatures were there when the sureties signed. By signing under what appeared to be the signatures of the principals, the sureties, as against the obligee named in the bond, must be held to have adopted such signatures, and to have estopped themselves from questioning their genuineness. It follows that the bond was of force against the sureties, as well as the principals, and that they must abide its conditions. It appeared from the proofs that, upon the special execution for the return of the property issued to the sheriff, he called upon the defendants, and sought of them possession of the property or information as to its whereabouts, and was informed by them that they had nothing to do with the matter; that thereafter he visited a mill, where the property in question was found, connected with other machinery, and in operation by one in no way connected with the replevin suit; that he was allowed to check up the different articles, to see that all of the property described in the execution was tuere, but was not allowed to do anything further towards taking possession thereof. It was not made to appear that anything further than this had been done by or on behalf of the plaintiff to secure possession of the property, and, in our opinion, no such possession was obtained as to excuse the defendants from complying with their contract to return the property, or pay its value. The condition of the bond was not that the defendants would allow the plaintiff to hunt up the property, and get it if he could, but was that they would return it to him if he succeeded in the action. And while it is true that the property in question was so heavy and bulky as to make it difficult of actual manual delivery, and that the rule as to delivery is less strict as to such property than as to smaller articles, yet it was their duty to take such action as would enable the plaintiff to obtain actual possession of the property. Until they had done this, they had not returned it to him, within the meaning of the statute and the conditions of the bond. The plaintiff had possession at one time after the suit to determine the title thereto had been commenced. The defendants could have allowed him to retain such possession, and by so doing have escaped any liability to safely keep and produce the property. Instead of doing so, they availed themselves of the provisions of the statute, and took the goods from the plaintiff, and, having been defeated in the action, are bound to see that the substantial possession is returned to him, or be held liable for the value of the property. The injunction proceedings instituted by a stranger to the replevin action, under the circumstances disclosed by the record, had no effect upon the rights of the parties. Such injunction was not issued until after the defendants had been given an opportunity to return the property if they had been in a situation to do it, and sufficient demand for such return had been made upon them. failure to comply with such demand authorized the plaintiff to assume that a return of the property could not be had. Their RECORD ON APPEAL-STATEMENT OF FACTS NoTICE OF FILING-DISMISSAL OF APPEAL. 1. A certified statement of facts, notice of the filing of which was not served on all parties appearing in the action, as required by Laws 1893, c. 60, § 9, will be stricken from the record. 2. The fact that the statement of facts is stricken from the record for lack of service does not authorize the dismissal of the appeal. Appeal from superior court, Chehalis county; Mason Irwin, Judge. Action by the First National Bank of Aberdeen against Julius Andrews, George H. Keith, and others, to foreclose a mortgage. There was a judgment for plaintiff, and defendant Andrews appeals. On motion to strike the statement of facts from the files, and to dismiss the appeal, motion granted as to statement of facts, and judgment affirmed. Hogan & McGerry and Ben Sheeks, for appellant. Wm. O. McKinlay, O. V. Linn, and J. B. Bridges, for respondent First National Bank. Austin E. Griffiths, for respondent Keith. ANDERS, J. The respondent moves the court to strike the statement of facts from the files herein, and to dismiss the appeal, upon the grounds that no notice of filing the statement of facts was ever served upon defendant Keith, and that no notice, either written or oral, was ever given the defendant Keith of the filing, signing, or settling of the said statement of facts by the appellant, or by any one for him. It appears from the record that the defendant Keith filed an answer in this cause in the court below, and thereby appeared in the action. A proposed statement of facts was prepared by the appellant, and filed and served upon the respondent bank, but it is admitted that no notice of the filing thereof was ever served upon the defendant Keith. Section 9, c. 60, Laws 1893, provides that "a party desiring to have a bill of exceptions or statement of facts certified must prepare the same as proposed by him, file it in the cause * and serve a copy thereof on the adverse party, and shall also serve written notice of the filing thereof on any other party who has appeared in the cause. Within ten days after such service any other party may file and serve on the proposing party, any amendments which he may propose to the bill or statement. Either party may then serve upon the other a written notice that he will apply to the judge of the court before whom the cause is pending or was tried, at a time and place specified, * * to settle and certify the bill or statement." Laws 1893, p. 114. It is urged on behalf of the appellant that, inasmuch as the statement of facts in this cause had been properly certified by the trial court, this court has no authority to set it aside or disregard it, for the reason that the same act provides (section 13) that "the certifying of a bill of exceptions or statement of facts provided for by this act, and the filing and service of the proposed bill or statement, the notice of application for the settlement thereof, and all other steps and proceedings leading up to the making of the certificate shall be deemed steps and proceedings in the cause itself, resting upon the jurisdiction originally acquired by the court in the cause, and no irregularity or failure to pursue the steps prescribed by this act on the part of any party, or the judge, shall affect the jurisdiction of the judge to settle or certify a proper bill of exceptions or statement of facts." This statute has so changed the former law that the matters therein mentioned which were formerly deemed jurisdictional are no longer such; but does it necessarily follow that a statement of facts which has not been served in accordance with law is a proper statement of facts, even under this provision of the statute? As will be seen, the object in requiring the notice of the filing of the statement to be served on all the parties who have appeared in the action is to give such parties an opportunity to propose any amendment or amendments they may desire to have made to such statement. It may, therefore, be taken as true that the statement of facts certified by the court is a statement of the facts under the circumstances as they appeared at the time of the certification. But it may be that if a proper notice had been served upon the defendant Keith, as required by law, he would have interposed amendments to the statement which would have been inserted therein by the court. While this failure to give the notice does not affect in any way the jurisdiction of the court to settle and certify a statement of facts, we think it cannot be said that the statement in question was a proper statement of facts in this cause. We think that a proper statement must be such a one as has been settled after all notices have been given to the parties as prescribed by law. This court has many times held that statements of facts must be stricken |