in the suit had no lien upon real or personal property, but it was procured upon the ground that the defendant was a nonresident of the state of California. The commencement of the Placer county suit was wholly unwarranted in law, unauthorized by the facts, and cannot be justified upon any ground. Counsel, in bringing that suit, evidently misconceived the remedy which the plaintiffs were entitled to, and thereafter sought to rectify the mistake by procuring a dismissal of the case. But a party who imagines he has two or more remedies, or who misconceives his rights, is not to be deprived of all remedy because he first tries a wrong one. Peters v. Ballistier, 3 Pick. 505; notes to Fowler v. Bank, [21 N. E. 172,] 10 Amer. St. Rep. 488; Bunch v. Grave, 111 Ind. 357, 12 N. E. 514. Mr. Coffin testified that he was induced to institute the suit, and to cause the levy of the attachment, upon information which he at the time believed to be reliable, to the effect that Mrs. Spooner had wrongfully obtained the possession of the property from the custody of the pledge holder, and was attempting to remove the same from the state of California, and that the object of bringing the suit was to prevent such action on her part, and enable the bank to regain the possession of the property so as to subject it to the lien of the chattel mortgage. The evidence shows that the suit would not have been brought except for the steps taken by M. E. Spooner in conveying the property to his wife, and her action in endeavoring to remove the pledge holder from the possession of the property, and to obtain possession of the same. The bringing of the suit and the levy of the attachment were not the result of the voluntary action of the bank, but were caused by the wrong ful act of the mortgagor and pledgor of the personal property, and he is not in a position to take any advantage of such proceedings upon the part of the bank; this, upon the familiar principle that a party cannot take advantage of his own wrong in order to relieve himself from the payment of a just debt. The general principles herein announced are as applicable, in my opinion, to the case of Munro v. Spooner, as to the case of the bank, although the facts are somewhat different. The order of the court in the foreclosure suit, directing the receiver to deliver the property to Mrs. Clara Spooner, cannot be considered as an adjudication of the rights of the parties to the possession of the property. If her possession was wrongful, the restoring the possession to her in that manner did not make it rightful. The fact of the appointment of the receiver did not, of itself, determine that the bank was entitled to the possession, and the fact that the receiver was discharged does not, of itself, determine that the bank was not entitled to the possession. The appointment of the receiver might have been wrongfully obtained, although the bank was lawfully entitled to the possession of the property, and the order discharging the receiver might have been properly made, on the ground that his appointment was irregularly or wrongfully obtained, without in any manner determining who was legally entitled to the possession of the property. In Von Roun v. Superior Court, 58 Cal. 358, the court said: "The appointment of a receiver works no injury to the least right of any one. It would be strange if it did. The receiver is the hand of the law, and the law conserves and enforces rights; never destroys them. His appointment determines no right, and in no way affects the title of any party to the property in litigation." See, also, 3 Pom. Eq. Jur. § 1336. The views herein expressed dispose of all the objections raised against the right of the plaintiffs to recover in this action. The only question remaining is as to the right of plaintiffs to recover the hay and grain upon the Spooner ranch. The testimony was to the effect that it was orally agreed between the parties that the pledge holder should take possession of the hay and grain; but in weighing the testimony it seems only to go to the extent of authorizing the possession of the hay and grain for the purpose of feeding the stock, (horses and cattle.) It is doubtful whether this testimony was admissible for any purpose. Under all the facts of this case, the judgment will be confined to the personal property mentioned in the agreement appointing the pledge holder. While some of the parties who are interested in the disposition of this case have been wrangling over the possession of the property, and others have been bitterly engaged in much unnecessary litigation, the cattle in controversy, brute creatures as they are, have been pursuing a much better course, and perhaps setting all the parties a good example, by quietly chewing the cud of peace, and all the stock, in a more compromising spirit than has so far been evinced by any of the parties, has been peacefully eating the hay and grain, and has had the benefit of at least a portion thereof. The plaintiffs are entitled to recover the possession of the horses and cattle, and, if recovery cannot be had, they are entitled to recover the value thereof, to wit, the sum of $6,312, and the costs of this suit. The clerk will enter judgment accordingly. BULLION & EXCHANGE BANK v. OTTO et al. (Circuit Court, D. Nevada. December 11, 1893.) No. 573. STATUTE OF FRAUDS-MORTGAGE-PAROL AGREEMENT FOR POSSESSION. When a parol agreement whereby a mortgagor of lands is to surrender possession to the mortgagee has been executed by actual delivery, the statute of frauds cannot be set up by one who, with notice, acquires possession under a lease from a subsequent grantee of the mortgagor. At Law. Action by the Bullion & Exchange Bank against A. Otto and M. Healey to recover possession of real estate and the rents and profits thereof. Judgment for plaintiff. Trenmor Coffin, (Goodwin & Dodge, of counsel,) for plaintiff. HAWLEY, District Judge, (orally.) The principles involved in this case are in many respects substantially the same as in No. 572, and need not be again stated or discussed. In this case the testimony shows that James Marshall, acting for M. E. Spooner and the Bullion & Exchange Bank, under an oral agreement between said parties, took possession of the real estate known as the "Spooner Ranch," to hold and keep possession thereof for the bank as the mortgagee of said property. The defendants in this suit thereafter, on the 18th of November, 1892, obtained the possession of the real estate under an agreement or lease from Mrs. Clara Spooner, and have ever since been in the possession thereof. At the time of the commencement of the foreclosure suit the plaintiff filed in the recorder's office of Lassen county a notice of lis pendens of said suit, and the same was duly recorded. The other facts, so far as applicable, are the same as stated in Marshall v. Otto, 59 Fed. 249. It is claimed that the oral agreement of M. E. Spooner with the bank, to deliver the possession of the real estate, was within the statute of frauds. But the question is not whether the oral agree ment could have been enforced if M. E. Spooner had refused to deliver the possession. The statute only affects the parties to the agreement. The facts are that M. E. Spooner delivered the possession to Marshall for the mortgagee, and, the agreement having been executed, it is valid between the parties. The defendants are cer The tainly not in a position to urge the statute of frauds as a defense to this suit. Book v. Mining Co., 58 Fed. 106. The right to make such an oral agreement is well settled, and the effect of such an agreement, and of the possession taken thereunder, is clearly and correctly stated in Spect v. Spect, 88 Cal. 440, 26 Pac. 203. question presented in that case was whether a mortgagor who had placed his mortgagee in possession of the mortgaged premises could maintain ejectment against him while the debt for which the mortgage was given remained unsatisfied, even though an action by the mortgagee for the recovery of the debt is barred by the statute of limitations. The court, after quoting section 2927 of the Civil Code, which declares that "a mortgage does not entitle the mortgagee to the possession of the property, unless authorized by the express terms of the mortgage; but after the execution of the mortgage the mortgagor may agree to such change of possession without a new consideration,"-said: "The right of the mortgagee to take possession of the mortgaged premises does not depend upon the statute. The mortgagor could at all times, even by a parol agreement, give to his mortgagee this additional security. Fogarty v. Sawyer, 17 Cal. 589; Edwards v. Wray, 11 Biss. 251, 12 Fed. 42. In taking such possession, the mortgagee does not thereby acquire any estate in the land, or obtain for his mortgage any higher character, or any different or greater protection, than it would otherwise have possessed. In any action to enforce the mortgage, or to collect the debt for which it was given as security, the mortgagee has no additional rights by reason of the fact that he is in possession of the mortgaged premises with the consent of the mortgagor. Such possession does, however, give him rights in addition to those conferred by the mortgage. It is an additional security for the debt, which he is entitled to retain in accordance with the terms under which it was received. This right to retain the possession of the land is not coincident with a right to foreclose his mortgage, or dependent upon such right, but depends solely upon the existence of the debt. The possession of the land is a special security for the v.59F.no.2-17 debt, distinct and separate from the mortgage, which has been conferred by an act of the debtor, and the right to retain the same is independent of, and distinct from, any right springing from the mortgage." I find the rental value of the property to be worth $900 per an num. The plaintiff is entitled to be restored to the possession of the real estate, and to recover the rental value from the time de fendants wrongfully obtained possession thereof, at the rate of $75 per month; and judgment will be entered accordingly. CONNECTICUT FIRE INS. CO. OF HARTFORD v. HAMILTON. (Circuit Court of Appeals, Sixth Circuit. November 6, 1893.) No. 4. 1. INSURANCE-DEMAND FOR APPRAISAL. A joint demand for a joint appraisal by twelve insurance companies is not within the terms of the policy of one of the companies, providing for an appraisal by two persons, one to be selected by the company, and the other by the insured, who, in case of disagreement, were to call in a third. Such policy stipulates for a separate appraisal. 2. SAME-PROOFS OF LOSS-WAIVER. A policy of fire insurance provided that a loss should be paid 60 days after notice and proofs; that the amount should be appraised in a certain manner, and the appraisers' report should be made part of the proofs of loss; and until such proofs should be produced and appraisals permitted the loss should not be payable. Proofs of loss were furnished by the insured, to which the insurer objected because of the amount claimed. After negotiations between the parties concerning the manner of appraisal, the insurer promised to submit a form of appraisal, which it failed to do, but retained the proofs for over 60 days. Held, that the insurer could not afterwards object to the sufficiency of the proofs. Severens, District Judge, dissenting. 46 Fed. 42, affirmed. 3. SAME-APPRAISAL. When it is stipulated in a fire insurance policy that, in case the amount of loss shall not be agreed upon by the parties, it shall be determined by appraisers chosen by them, and that their appraisal shall form a part of the proofs of loss, until the production of which the loss shall not be payable, it is the duty of the insured, in case of disagreement, and the stipulation is not waived by the insurer, to obtain such an appraisal, and no right of action arises until he has obtained it, or made reasonable effort to do so and failed. Per Severens, District Judge. 4 SAME-SALE PENDING APPRAISAL. If, in such a case as is last supposed, the policy gives the insurer the right within 60 days after the reception of such proofs of loss to take the damaged property at the appraisal value, the insured has no right, while negotiations for an appraisal are pending, and while only 33 days from the transmission of the original proofs of loss have elapsed, to sell in parcels and dispose of the damaged property; and if he does so he cannot maintain his action on the policy. Per Severens, District Judge. In Error to the Circuit Court of the United States for the Western Division of the Southern District of Ohio. At Law. Action by Robert Hamilton against the Connecticut Fire Insurance Company of Hartford on a fire insurance policy. Upon suggestion of the death of the plaintiff, Cora B. Hamilton and John W. Bryant, his executors, were substituted in his place and stead. A verdict was directed for plaintiffs, (46 Fed. 42,) and judgment for plaintiffs was entered thereon. Defendant brings error. Affirmed on reargument. Thomas A. Logan, for plaintiff in error. Joseph Wilby, for defendants in error. Before TAFT, Circuit Judge, and SEVERENS and SWAN, District Judges. SEVERENS, District Judge. Robert Hamilton brought his suit in the circuit court for the southern district of Ohio to recover upon a policy of insurance issued by the plaintiff in error, for a loss sustained by him in consequence of fire, occurring on the 16th of April, 1886, in a warehouse at Covington, Ky., whereby his stock of tobacco there stored was damaged. This stock was insured also by 11 other companies. The policy of the Connecticut Fire Insurance Company contained this stipulation: "Loss or damage to property partially or totally destroyed, unless the amount of said loss or damage is agreed upon between the assured and the company, shall be appraised by disinterested and competent persons, one to be selected by the company and one by the assured; and, when either party demand it, the two so chosen may select an umpire to act with them in case of disagreement, and if the appraisers fail to agree they shall refer the difference to such umpire, each party to pay their own appraiser and one-half the umpire's fee; and the award of any two in writing shall be binding and conclusive as to the amount of such loss or damage, but no appraisal or agreement for appraisal shall be construed under any circumstances as evidence of the validity of said policy, or of the company's liability thereon. When personal property is damaged, the assured shall put it in best order possible. and make an inventory thereof, naming the quantity and cost of each article; and upon each article the damage shall be separately appraised,—if a building, by an estimate in detail; and the report of the appraisers in writing under oath shall form a part of the proof hereby required, and until such proofs and certificates are produced and examinations and appraisals permitted the loss shall not be payable." -And there was a reservation of a right to the company to take any of the damaged property at the appraised value, or to repair or replace property damaged or lost, upon giving notice of their intention so to do within 60 days after the receipt of the proof therein required. It was also stipulated in a previous part of the policy that the loss was "to be paid to the assured sixty days after due notice and satisfactory proofs of the same are made by the assured and received at their office in Chicago, in accordance with the terms of this policy hereinafter mentioned." It is not questioned that the insured property was damaged by the fire, or that the loss was within the terms of the policy. The defense is founded upon the provisions of the policy above set forth. It is alleged that the proofs of loss required by the contract had not been furnished; and it is alleged that the insurance company, not agreeing to the amount of the loss as claimed by the insured in his preliminary proofs, seasonably demanded that the same be determined by the award of appraisers to be chosen by the parties, pursuant to the stipulation in the policy, and that this demand was refused by the insured, who also sold, against the protests of the com |