Baker v. Varney

McFARLAND, J.

The plaintiff herein was appointed as a receiver in a suit brought by the intervenor for the foreclosure of a mortgage upon certain land in Sutter' county, and

[565]

brought this action as such receiver to recover possession of certain cattle claimed by him to be the rents and profits of the mortgaged property. It is contended by. appellant that the plaintiff cannot recover in this action because his appointment as receiver was void; and, as we think that this contention must be sustained, it will not be necessary to examine any of the ether questions raised in the case.

Prior to the enactment of section 564 of the Code of Civil Procedure, it had been definitely determined in this state in the case of

Guy v. Ide,

6 Cal. 99,

1

and by other cases which followed it, that in a foreclosure suit the court had no power to appoint a receiver to collect the rents and profits pending the litigation. By the second subdivision of said section 564 power was given the court in an action to foreclose a mortgage to appoint a receiver “where it appears that the mortgaged property is in danger of being lost, removed, or materially injured, or that the conditions of the mortgage have not been performed, and that the property is probably, insufficient to discharge, the mortgage debt”; and this is the-nnly provision giving jurisdietion to appoint a receiver in such a suit. In the case at bar the receiver was not appointed under that subdivision of the section, but the authority to appoint a receiver was based entirely upon a stipulation in the mortgage itself ‘that upon default in the payment of the mortgage debt and on the filing of a complaint for foreclosure “the court shall, if requested by. the plaintiff, name some disinterested person as receiver, and shall authorize such receiver to at once take possession of the mortgaged premises and collect the rents and profits thereof,” etCy It was upon this stipulation alone that the alleged power of the court to appoint a receiver rests, and it is so recited in-the or-^ der of appointment. Where a court has no authority under! the law to appoint a receiver, such authority cannot be eon-1 ferred by consent or stipulation of the parties. In such case consent of parties cannot confer jurisdiction upon a court, nor impose upon it the duty of taking care of and disposing of the property. It might as well be said that in a suit upon a promissory note, or upon any simple contract for the payment of money, a stipulation in the instrument by which the debt was