
    Henshaw, Ward, & Co. vs. Wells et als.
    
    1. The Planter’s Bank held a mortgage on lot No. 172 and lot No. 9, in Nashville, for the satisfaction of a debt. Henshaw, Ward, & Co. held a mortgage on lot No. 9 for the satisfaction of a debt due them. Henshaw, Ward, & Co., had a right to compel the bank to exhaust the proceeds of lot No. 172 and the rents before it could go upon lot No 9.
    2. The mortgagee is entitled to the immediate possession of the estate mortgaged, and if by tacit consent, before default of payment, the mortgagor is left in possession, and rents the premises, and the tenant pay to him the year’s rent in advance he shall pay it again to the mortgagee. He has constructive notice of the registered mortgage, and shall not defeat the rights of the mortgagee, and upon a bill filed for a foreclosure of the mortgage, a court of chancery may appoint a receiver and enforce the collection of rents.
    3 A receiver may be appointed at any stage of the proceedings, whenever the facts authorize and require the appointment, and in favor of a defendant against a co-defendant when the defendant is asking relief.
    Thomas Wells being the owner of two parcels of real estate in the town of Nashville, on the 14th November, 1840, mortgaged them to the Planters’ Bank of Tennessee, to secure the payment of ten notes due from one to ten years, from the 31st of October, 1840. The mortgage deed was registered immediately. On the 16th of June, 1845, he mortgaged one of the same parcels of property to complainants to secure a debt due them. The mortgages were in the usual form. During the existence of these mortgages, Wells had been permitted to remain in possession of the lots, and he rented them out and received the rents. Wells failed to make payment to the bank of the note due to it on the 31st of October, 1845, but no step was taken by the bank in consequence of this, and no notice given to the lessees of Wells to pay rent to the bank. The parcel of the property, of which the rent is now in controversy, was not mortgaged to the complainants. This piece of property had been rented for the year 1846 by Wells to O. P. Catron, and perhaps for several years previously. The renting had been from the 31st of October in one year, to the 31st of October in the next year. On the 28th of August, 1846, Wells being then not unckr any suspicion in regard to his solvency, and having been in no manner interfered with by the bank or Henshaw, in his management of said property, came to Butler, who was trustee for Catron, (Catron having, in the meantime, failed in business) and proposed to rent it to him for the next year, telling him that he must decide to take the house or not then, as others were willing to take it, if he did not. Butler agreed to take the house, and a rent article was entered into, on that day, between him and Wells, under seal, for the year ending October 31st, 1847. Butler gave Wells his negotiable notes for the rent, which were immediately sold to a dona fide holder by Wells, and their proceeds converted to Wells’ own use: the rent article was dated 31st October, 1846, but merely because that was the end of the rent year, and not for any illicit purpose, at least so far as Butler was concerned; and this especially appears, as there is a memorandum at its foot, stating the true day when it was executed. On the 16th day of October, 1846, (Wells having become openly insolvent in the meantime) Henshaw, Ward & Co., filed their bill, alleging the two mortgages, and stating that their security was insufficient, and' praying a receiver for the premises mortgaged to them, but saying nothing of a receiver for the other, nor of the rents of the other parcel of property, and merely asking for its sale. The Planters’ Bank and Wells were defendants to this bill: Butler was in no way made a party, and had no actual notice of this proceeding. In November, 1846, the bank answered and stated its mortgage, and the amount due, and to become due to it. On the 5th of November, 1846, G. M. Fogg, agent for plaintiffs, made oath that the mortgaged premises were inadequate to pay the debt of complainants, and thereupon a motion was made by the complainants and Planters’ Bank that a receiver be appointed of both parcels of property, and that he give immediate notice to the tenants in possession. This notice was served on the 13th of November and the tenants refused to attorn to the receiver or to pay rent, on the ground that they had given their notes to Wells, who had disposed of them and was insolvent. Upon these facts, the Chancellor decreed that Butler should pay the rent from 31st October, 1846, to 31st October, 1847, to be applied to debts of the bank and complainants. Butler appealed.
    
      F. B. Fogg, for complainants.
    This is a.bill, filed by the second mortgagee, of a house and lot, in Nashville, against the first mortgagee, and the mortgagor. The first mortgagee had included in its mortgage another house and lot, and the complainants had a mere equitable title, it being, in truth, a conveyance of the equity of redemption on mortgage. The object of the bill was to have the mortgages foreclosed, and as first mortgagee had two liens, to make him enforce that not given to second mortgagee, to the extent of the property. The bill was filed on the 16th October, 1846, and the only question now presented is,, who is entitled to the rents ■ from the 31st October, 1846, to 31st October, 1847, ■pendente lite, upon principles of equity, complainants having no legal right. The first and second mortgages were registered long before the filing the bill, and of course the title being on record, every body had notice of its state and condition, and the mortgagor had no power to make leases not subject to the mortgage, and as deeds were registered, no attornment was necessary.
    On the 6th November, 1846, in open court an affidavit was filed by the second mortgagee stating that the mortgaged premises were an insufficient security, and praying that the tenants may pay the rents to the court, and that notice be given to them accordingly by the clerk and master, which was done, and the clerk was appointed receiver.
    These rents were a part of the mortgaged property, and the court had a right to appoint a receiver, and give notice to the tenants which is equivalent to an attornment by the tenants. 1 Powell on j\Iort., 294, 172, 194, 175, et seq.; Moss vs. Gallimore, 2 Doug., 265; Keech vs. Hall, Doug., 22; 20 Johns. Rep., 51 ; Smith’s Leading Cases, vol., 43 Law Library, 396, 492; 6 Conn. Rep., 464. It is no answer to say, that mortgagee cannot distrain for rent, or bring an action at law, for rent, against lessee, because there is no privity of interest; here the lessee had notice of the existing state of the title by registration of the deeds, and knew that mortgagor could make no lease not subject to be put an end to by mortgagee ; and even at law there are conflicting authorities. See Pope vs. Biggs. 9 Barn, and Cress., 245; Smith vs. Shepherd, 15 Pick., 147. The filing the bill' by an equitable encumbrancer is equivalent to an action of ejectment, by one having the legal title.
    2. The first mortgagee had a mortgage on two lots, the second on one of them only. Complainants had a right to compel first mortgagee to exhaust the remedy upon the lot not mortgaged to second mortgagee. Hop. Rep., '460; 3 Leigh, 532. If a creditor has two funds he shall take his satisfaction out of that fund upon which another creditor has no lien. 1 Story’s Eq., sec. 556, 633, and note, cases cited, 647. The funds in the hands of first mortgagee, consisted of rents as well as the corpus of the property, after filing the bill.
    
      3. As to receiver on application of second mortgagee, see 1 Pow. on Mort., 297, 298, et seq., note.
    4. What is rent 1 See definition in Blackstone, 4 Kent, 460.
    “ Phipps vs. Bishop of Bath and Wells, 2 Dickens’ Rep., 608. Application by the Attorney General, on behalf of a second mortgagee, (the first mortgagee declining any steps to get into possession) to have a receiver appointed ; and that he might apply the rents in keeping down the interest of a mortgage, and £10,000 charged on the estate, and to pay the surplus rents into the bank.
    Lord Chancellor Thurlow. A second mortgagee, the mortgagor living, cannot have a receiver without the •consent of the first mortgagee, because the court cannot prevent the first mortgagee from bringing an ejectment against the receiver, as soon as he is appointed.”
    The bill now is to appoint a receiver without prejudice to first or previous encumbrancer taking possession. See Daniel’s Eq. Prac., 1949, 1850, et seq.
    
    
      Frelinghuysen vs. Cobden, 4 Paige, 205. Complainant in possession and insolvent; on motion of defendant, who had purchased under a decree of foreclosure, to which complainant had not been a party, a receiver was appointed.
    2 Schoales and Lefroy, 710, 718; where rights of co-defendants inter sese arise from proofs and documents in the case between plaintiffs and co-defendants, court of equity is bound to decree between co-defendants, and it is error not to do so. But where defendant is not a party seeking the aid of the court, and no decree can be made for him, and, therefore, not entitled to apply for an order for his own relief, it may be different. These complainants seek to be substituted in place of first mortgagee and make him enforce all his rights against the property of the mortgagor; the first and second encumbrancer are both seeking relief against the mortgagor and his tenants, the security being inadequate.
    
      Metcalf vs. Pulvertoft, 1 Vesey and Beames, 180; receiver was appointed at the instance of a purchaser pendente lite. Daniel’s Chan- Practice.
    A prayer in a bill for a receiver is not absolutely requisite, and if the facts of the case authorize it, the court will appoint a receiver, although there is no prayer to that effect in the bill. Malcolm vs. Montgomery, 2 Molloy, 500; 12 Con. Chan. Rep., Daniel, 1974-5.
    Consequence of appointment and mode of proceeding against tenants. Daniel’s Practice, 1982, 1983 ; 2 Story’s Eq. Ju., sec. 883. See section 829. Story, where he says: “ The appointment of a receiver is made for the benefit and on behalf of all the parties in interest, and not for the benefit of the plaintiff, or one defendant only.”
    The appointment of a receiver does not affect the right of any party. Lord Hardwicke in Ship vs. Townsend, 3 Atk., 464. The second mortgagee of a part of the property mortgaged to the first, has an equity to compel the first to exhaust his remedies, and to collect the rents where the property is inadequate. Why compel the first mortgagee to bring ejectment when the mortgagor and encumbrancer are before the court? Although the second mortgagee has no equitable right by contract to the rents of property not mortgaged to him, included in first mortgage, he has an equity against mortgagee and mortgagor to have the rents applied to first mortgage, where security is insufficient.
    
      Richard vs. Gould, 1 Molloy, 22; 12 Con. Chan. Rep., 16; Robinson vs. Thorpe, note to page If, Chief Baron says: “ The cases cited only shew the practice in England as to appointing and l’emoving receivers. There in a mortgage cause they only decree a foreclosure in favor of plaintiff, but our practice is to sell the estate, and by the produce pay the parties according to priority; and, therefore, the receiver is for the benefit not merely of the plaintiff, but of all parties.”
    
      E. TI. Ewing, for defendant Butler.
    The decree of the Chancellor cannot be sustained.
    1. Because, even if the Planters’ Bank was complainant, and Butler was its tenant, it could not have judgment in this summary way, for rent, in a court of equity, either in its behalf or that of its receiver.
    2. Because, if the bank was complainant, it could not in equity, in any event, have judgment against the tenant of Wells, who had never attorned to the bank, and this for want of privity as well as for want of jurisdiction in a court of equity.
    3. The bank is not complainant, and though Henshaw, Ward & Co., on the principle of marshalling assets, might force the bank to have its debt first satisfied out of the Butler house and its rents, still the bank not being complainant, a receiver could not be appointed of that property upon which it alone had a lien, nor a fortiori, could a judgment be rendered in behalf of the bank or its receiver, leaving out of view the reasons above given.
    4. No receiver of this Butler house is prayed for in the bill, and none is asked for by petition or affidavit, and none could be appointed by the court. A receiver will not be granted before hearing, if not prayed for in the bill, nor then, unless upon special application. Receiver will not be appointed on application of one defendant against another. Trumbull vs. Ogden, 3 Eq. Digest, 557,
    5. Even at law, the Planters’ Bank could neither sue for these rents nor distrain for them, if the law of distress prevailed here, for want of privity ; Butler never having consented to become the tenant of the bank, but having refused to attorn to it, or become its tenant. The remedy of the bank would have been an ejectment against the tenant and an action of trespass for mere profits. The case of Keech vs. Hall, in Douglas, was an action of ejectment. The case of Moss vs. Gallimore, in the same, was one of a tenant who had become such before the mortgage, and whose lease was, therefore, assigned by the mortgage. There is no case where a mortgagee has been permitted to recover against lessee of mortgagor after mortgage, except the case of Pape vs. Biggs, 9 B. and C., 245, recognized in Waddilove vs. Barnett, 2 Bing. N. C., 538, alluded to in Vallance vs. Savage, 7 Bing., 590.
    The ease of Pope vs. Biggs was shaken by Partington vs. Woodcock, 5 N. and M., 672, 6 Adol. and Ellis, 690, by Rogers vs. Humphreys, A Adol. and Ellis, 313. At length in Evans vs. Elliott, 9 Adol. and'Ellis, it was expressly decided that a suit by mortgagee, for rent, against tenant of mortgagor, who became such after mortgage, could not be sustained. And in -Brown vs. Story, 1 Man. and Grainger, the same doctrine is held, but stating it would be altered if the lessee assented to hold under the mortgagee. The following American decisions sustain the same position viz: Souders vs. Van Sickle, 3 Hal., 313; McKircher vs. Hawley, IQ Johns., 290; Watts vs. Coffin, 11 Johns., 495, and Mays vs. Shattuck, 14 Pick., 533. The case of Jones vs. Clark, 20 Johns., 51, cited in Mr. Fogg’s brief, is not contra, for that was a case where lessee attorned to mortgagee, which of course would make a privity. See also 43 Law Library, English and American notes to Moss vs. Gallimore.
    
    
      6. By no mode, and in no court should the Planters’ Bank be allowed to recover these rents; neither by suit directly for the rents, nor by ejectment and trespass for mesne profits. By the nature of a mortgage and the rules well-established in regard to it, the mortgagor remains in possession of the mortgaged premises until condition broken, and may remain in possession, or receive the rents, for which he can be held to no account, as much longer, as possession is not demanded by the mortgagor. See 1 Powell on Mort., 157. This position will not be denied, and if it be, it can be sustained by ample authority. See Moss vs. Gallimore, and, in fact, all the cases above cited. After condition broken, however, the mortgagee may, without notice in general, eject the mortgagor, or his tenant, and recover rent arrear by way of mesne profits» though not anything for rent paid before notice. This notice is generally spoken of as notice of the mortgage, sometimes as notice not pay rent to the mortgagor, and the two things in England are identical; for as there is no registration law analagous to ours, and as a lessee has in fact no notice, either actual or constructive, of the mortgage. when notice is given to him of the mortgage, it is notice to pay no more rent to the mortgagor. Our registration is not a substitute for this notice, for otherwise, however solvent a man might be. and however long his mortgage might have to run before condition should be broken, he could not rent out his mortgaged properly, nor receive the rents, because the registration would be notice to all lessees not to pay refit to the mortgagor, and it might be recovered back by way of mesne profits. The notice 
      referred to, in the Books, is a notice that a mortgagee means no longer to permit mortgagor to remain in possession, and to receive the rents. Well, when was this kind of notice given in this case ? Not till thirteen days after the rent year of 1846 was out. The filing of the bill was no notice, as Henshaw, Ward & Co., had no lien on the Butler property, and asked for no receiver of tha, and Butler was no party. Wells had been made trustee by the bank to rent this property out, from year to year, for four or five years; he appeared to be solvent, and was thought to be rich. The rent year is about to expire, and Wells comes to the tenant and says, do you want this property? If you do not, others do. You must give me your note, or go out of the property. This is the custom of the country; it was in accordance with the acquiescence of the bank, previously. Butler had no notice of Wells’ default, in 1845, to the bank. Who has trusted most here, Butler or the bank? Lessors, in this country, must make their contracts, and get notes, with security, before the end of the year, otherwise, their, former tenants, whether solvent or insolvent, may remain in for another year in spite of them for want of notice. There is not here, as in England, a right of distress, and unless security be taken, before the end of the year, none can be got. Under these circumstances, Butler gives his notes, they are traded off, and it is now sought a second time to make him pay the rent. Further, it is not customary in this country, as in England, to take mortgages to secure loans with interest payable yearly, or semi-yearly, and the rents looked to for that payment; so that no one is on his guard, in any wa3, as to the rents of mortgaged property. This mortgage was for property sold on credit to Wells, and no interest was accruing or expected to accrue on the notes secured. Butler might fairly presume that all that Wells did was done with the assent of the bank. See on these matters Doe ex dem.- Whitaker vs. Hales, 7 Bing., 322, and Evans vs. Elliott, 9 Adol. and Ellis, 342.
   GReen, J.

delivered the opinion of the court.

This bill is filed to foreclose a mortgage, executed to the complainants, by the defendant Wells, upon part of lot 172, in the city of Nashville, to secure a debt due the complainants of upwards of eight thousand dollars. Said mortgage is dated 16th of June, 1843. The said defendant Wells, being indebted to the other defendant, the Planters’ Bank of Tennessee, in the. sum of thirty thousand dollars, to secure the payment thereof, on the 14th day of November, 1840, executed to said Bank a mortgage, for said house and lot, No. 172, and also for a house and lot, No, 9, in said city. The debt to the Planters’ Bank was due in annual instalments from one to ten years. Wells, before the bill was filed, had paid the four first instalments due the bank, but he had failed to pay the fifth note, due the 13th of October, 1845.

The bill seeks to have the mortgage to the bank foreclosed, and that it have the lot No. 9, upon which the complainants have no lien, applied towards the extinguishment of its debt in the first place, and then so much of the proceeds of lot No. 172, as may be necessary to satisfy the same. The bill prays that a receiver be appointed to receive the rents of the lot mortgaged to the complainants. On the 28th of August, 1846, Wells, the mortgagor, (who had remained in possession, and who had previously rented the property, and received the rents,) rented the house, and lot No. 9., to E. 0. Butler, trustee for O. P. Catron, for one year, to commence the 31st day of October, 1846; and Butler executed two notes for the rent, dated 31st of October, 1846, for five hundred dollars each, due, the one at six and the other at twelve months.

This bill was filed the 16th of October, 1846, and on the 5th of November G. M. Fogg, agent of the complainants, filed an affidavit, stating that the mortgaged premises were wholly inadequate to pay all the debts; whereupon, on motion of the complainants, and the Planters’ Bank, (a defendant) a receiver was appointed by the court, to rent the mortgaged premises, — lots No. 173 and No. 9, — with orders to give the tenants in possession immediate notice thereof. The. receiver’s notice was served upon the tenants’ in 'possession,, the 6th of November, 1846. The tenants in possession refused to pay rent to the receiver,-and the court, at November term, 1847, directed that said tenants be summoned to appear, and shew cause why the court should not adjudge that they should pay rent to the receiver. E. C. Butler, who had occupied the. house, on lot No. 9, appeared, and showed for cause, that, before he knew of the existence of said mortgage, he had rented the house from Wells, for one year, to commence the 31st of October; and had executed to him negotiable notes, for the rent, and before he had received notice to pay rent to the receiver, the said notes had been negotiated by Wells, in due course of trade, and that the holder would enforce payment.

The court, thereupon, decreed, that the said Butler was liable to pay the rent to the receiver from the 6th of November, the time the receiver was appointed, and gave notice to said Butler, until the 31st of October, 1847, amounting to eight hundred and ninety-nine dollars and ten cents. From this decree Butler appealed to this court.

1. Upon these facts, the first question is, have the complainants a right to insist that the Planters’ Bank shall first resort to the house and lot No. 9, for the satisfaction of its debt? That they have such right, is the settled law of a court of chancery. The general principle is, that if one party has a lien on two funds, for his debt, and another party has a lien on one only of the funds, for another- debt, the latter has a right, in equity, to compel the former to resort to the other fund, in the first instance, for satisfaction. 1 Story’s Eq., Ju., sec. 559, 633, Thus, in the case put by Mr. Justice Story, (Eq. Ju., sec. 633,) “ If A has a mortgage upon two different estates for the same debt, and B has a mortgage upon one only of the estates for another debt, B has a right to throw A, in the first instance, for satisfaction, upon the security, which he, B, cannot touch; at least, where it will not prejudice A’s rights, or improperly control his remedies.” And this is certainly reasonable; for by compelling A to take satisfaction out of one of the funds, no injustice is done to him, and it is the only way by which B can receive payment. Upon this principle, the complainants, having a mortgage on lot, No. 172 only, and the Planters’ Bank having a prior mortgage upon that lot, and also upon lot No. 9, the bank may be compelled, in the first instance, to resold to the lot No. 9, for satisfaction. And it seems clear, that if the entire fund shall be deemed inadequate for the satisfaction of both debts, — the second mortgagee, may require, that the first mortgagee shall receive the rents of the estate also, and apply them to his debt.

2. Although the legal estate is vested in the mortgagee, yet there is a tacit assent, that the mortgagor shall retain the possession until default of payment, and while he thus retains possession he is not bound to account for rent. But the mortgagee may, at any time, and before default, if he choses, put the mortgagor out of possession, by ejectment, or other proper suit. 4 Kent’s Com., 155. When the mortgagor is left in possession, the true inference to be drawn is, that he shall possess the premises at will, in the strictest sense; and, therefore, he is not entitled to notice to quit. 1 Pow. on Mort., 160.

If the mortgagor lease the estate, while he is permitted to retain the possession, the. tenant can only enjoy such rights as the mortgagor possessed; for, says Chancellor Kent, (4 Com., 157,) “every person taking under him, takes, subject to all the rights of the mortgagee, unimpaired and unaffected.” This doctrine is much more reasonable in this country than it is in England, for it is the duty there, of a party who wishes to take a lease, to enquire after, and examine the title deeds: his negligence is much greater here, if he fail to acquire a knowledge of the mortgage, because an examination of the Register’s Books, would afford the desired information. But whether the tenant of the mortgagor, has actual knowledge of the mortgage or not, can make no difference; the registration is constructive notice to him, and he stands in exactly the situation of the mortgagor; for a mortgagor has no power, express or implied, to let leases not subject to every circumstance of the mortgagee. 1 Pow. on Mort., 60; Doug. Rep., 21; 4 Kent’s Com., 156, Therefore, although, if the mortgagee permits the lessee to enjoy his lease, the mortgagor may be considered, in some sort, a trustee for the mortgagee, yet, the mortgagee may, at any time, countermand the implied authority, by giving notice to the tenant not to pay rent to the mortgagor any longer. 1 Pow. on Mort., 158. We think, from these principles, thus supported by the authorities, it is clear, that Wells, the mortgagor, bad no right to make a lease from year to year, that would be obligatory upon the mortgagee; and that Butler, the tenant, paid the rent in advance, in his own wrong. He must be held to have had notice of the mortgage, and consequently to have had a knowledge of the rights of the mortgagee, and that it was in the power of the mortgagee, at any time, to require the rent to be paid to him; and, therefore, that the mortgagor had no right to receive the rent in advance. It is the tenant’s folly, and misfortune, that he executed negotiable securities for the rent agreed . on. He may, thereby, be required to pay the rent for this property, both to the mortgagor and mortgagee; but we cannot, on account of the hardship of the case, deprive the mortgagee of his unquestionable rights.

3. It is insisted, that a court of chancery has no jurisdiction to afford the relief now sought; that the tenant of the mortgagor, cannot be regarded as the tenant of the mortgagee, unless the tenant attorn to the mortgagee, and that the mortgagee’s only remedy is, to turn the tenant out by an ejectment, and then sue for mesne profits.

Upon this question, the authorities are somewhat contradictory, but the later cases seem to maintain the doctrine, that the mortgagee cannot, by giving the mortgagor’s tenant notice to pay rent to him, treat him as tenant, and distrain for rent, but-that in order to recover rent, the mortgagee must bring his ejéctment, and then recover for mesne profits. But where the mortgagee brings his bill to foreclose the mortgage, this doctrine has no application. If the fund is in danger, a receiver will be appointed, such appointment, resting in the discretion of the court. 3 Dan. Ch. Pl. and Pr., 1949. When a receiver has been appointed, it is the duty of any party on the record, to deliver up the possession of any lands and tenements that are in the occupation of the party, and the court in appointing a receiver, may order that the tenants attorn to the receiver, and pay their rent to him. 3 Dan. PI. and Pr., 1982-3. If they refuse to attorn, on being notified by the receiver, the practice in England is, for the party, obtaining the order for a receiver, to proceed against them for a contempt, lb., 1983. Thus, it will be seen, that in this case, the bank may be compelled to exhaust its remedies as to the estate the complainants cannot touch, before it will be allowed to obtain satisfaction from the estate mortgaged to the complainants; and one of those remedies is, to have the rents of lot No. 9, applied to the first mortgage, seeing the fund is inadequate. This is plainly an equity the complainants have against the mortgagor, ard the first mortgagee. But how can thij3 be effected unless a receiver be appointed to collect the rents ? Shall the first mortgagee be compelled to bring an ejectment to obtain possession, and then an action for mesne profits? Why all this delay, and circuity of action, when the court has all the parties before it ? Upon the foreclosure of a mortgage, our practice is, to sell the estate, and pay the parties according to priority. The receiver is, therefore, for the benefit of all the parties; and we think the chancery court had power to make the appointment in this case, and through the intervention of the receiver, to collect those rents — thus directly attaining the end which it is admitted the first mortgagee might have accomplished, by his ejectment, and his subsequent suit for an occupation rent.

4. It is objected that there is no prayer in this bill for a receiver, as to the house and lot No. 9, and that, therefore, the appointment was improper. In the case, of Malcolm vs. Montgomery, 12 Con. Eng. Chan. Rep., 583, the Lord Chancellor said : “A prayer for a receiver is not necessary to get a receiver appointed, if the facts stated authorize the appointment of one.” And in Dan. Chan. Prac., 1974, the same principle is stated, with the observation, that the necessity for the appointment frequently occurs after the bill has been filed, so that it could not have been part of of the prayer, and the court will, nevertheless, make the order without requiring the bill to be amended, or a supplemental bill to be filed.”

5. It is objected that this receiver was appointed on the application of one of the defendants (the bank) against another defendant, the mortgagor, and this it is insisted cannot be done. The cases in which the court has refused a receiver upon the application of defendant, against a co-defendant, are cases where the party was not seeking the aid of the court, and no decree could be made for him. But here the complainants seek to be substituted to the rights of the first mortgagee, and to make him enforce all his rights against the mortgagor. Both mortgagees are seeking relief against the mortgagor and his tenant. In such a case, the court may decree in favor of one defendant against another. In fact, it is required to do so, in order to afford the relief, to which the complainants are entitled. And if, as between the defendants, the court may decree relief, it follows, that it may make any interlocutory order that may be made necessary to obtain relief. We think the defendant Butler, was liable to the mortgagee, for a reasonable occupation rent, from the time he had notice to pay to the receiver; and although the amount should have been settled by the master, yet the sum agreed on in the contract with Wells, furnishes evidence of the value of the premises, and therefore, in taking that sum for the criterion by which to charge him, no injustice has been done. Upon the whole matter, we affirm the decree-  