It is contended on behalf of the appellants that the court erred in appointing the trustee receiver, and in putting him, as such trustee and receiver, in the possession of the property-First, because a plaintiff in a foreclosure suit is not entitled to a receiver unless it appears that the mortgaged property is in danger of being lost, removed, or materially injured, or is insufficient to discharge the mortgage debt; second, because the property, as it appears from the face of the complaint, was sufficient to discharge the mortgage debt; third, because, in no event, was the plaintiff entitled to be put in possession of the mortgaged property pendente lite, and to sustain this last ground, section 744, Code Civil Proc., is cited.

In reply we have to say that this action is not one to foreclose a mortgage. It is a suit brought to enforce the specific execution of the terms and stipulations of a mortgage, by which, on the happening of a specific event, the trustees, or the survivor of them, are entitled to take possession of the property mortgaged, hold it, receive and collect the income and profits arising from it, and apply such income and profits as are stated above. The casus foederis, which the surviving trustee was to take possession, having occurred, on his application the court made the order. This is so clearly within the province of a court of equity that we can see no reason to doubt its power or the regularity of the proceeding. It comes within the provisions of section 564, subd. 6, of the Code of Civil Procedure, authorizing such appointments where receivers have heretofore been appointed by the usages of courts of equity. There are several cases where such a proceeding has been had, which have been sanctioned and approved by courts of the most undoubted learning and ability. See Shepley v. Atlantic & St. Lawrence R. Co. 55 Me. 395; Shaw v. Norfolk Co. R. Co. 5 Gray, 162; American Bridge Co. v. Heidelbach, 94 U. S. 798; Andrews v. Scotton, 2 Bland (Md.) 665.

We quote here, as showing the ground on which such proceeding rests, the observations of the court, per WALTON, J., in the case above cited from 55 Me.:

"We do not understand that by this bill the trustees seek to obtain a decree of foreclosure of their mortgage. The objection, therefore, that this court has no jurisdiction in equity to decree such foreclosure is not well taken. The bill does not ask for such a decree; nor do we understand that possession of the mortgaged property is claimed by virtue of any rule or express provision of law. The objection, therefore, that they have not performed those acts which the statute required to make conditions precedent to such a right is equally foreign. What the trustees claim is to have their contract, by which it was agreed that in a certain contingency they should have possession of the mortgaged property, specifically performed. They do not claim the possession as the result of a rule of law, (except so far as the law requires parties to keep and perform all their lawful contracts,) but as the result of an express agreement. That the court has jurisdiction of the plaintiff's bill we cannot doubt."

The questions under consideration were substantially decided by this court adversely to the contention of appellant's counsel, in Sacra.

mento & P. R. Co. v. Superior Court of San Francisco, 55 Cal. 453, which decision we approve as correct.

The subsequent orders made in the cause in relation to the trustee and receiver, are, in our judgment, within the power of the court below, and without error. No facts appear in the cause in any way which show error. They are stringent, and in their very essence must be so. The appointment of a receiver is an equitable remedy, and has been said to be in effect an equitable execution. Jeremy, Eq. Jur. 249. The remedy is a provisional one, and bears a similar relation to courts of equity that proceedings in attachment bear to courts of law. See Cincinnati S. & C. R. Co. v. Sloan, 31 Ohio St. 1. The taking possession of the property of another is a seemingly harsh proceeding, but justified by the circumstances which demand its adoption, either arising from contract or the general rules of law. But the court which adopts this procedure is, and should be, careful to protect the interests of all concerned, and indemnity for all damage which the adverse party suffers is usually provided for by a bond with ample and sufficient sureties. Under these orders the plaintiff trustee, as receiver, took possession of the road.

On the fourteenth of April, 1881, the court made the following order:

[Title of court and cause.]

The order to show cause why the trustee and receiver should not have power to provide for the operation of the railroad committed to his charge by the order of the court herein, and to mortgage said property in order to acquire the rolling stock necessary to operate it, and also to lease said road, having been duly notified and heard by said court, and the arguments of counsel for both parties hereto having been duly considered, the court, now being sufficiently advised in the premises, doth now order as follows, to-wit: "That said trustee and receiver herein shall have, and is hereby invested with, the following additional powers and functions; that is to say: He shall have the necessary power to lease said railroad committed to his charge upon such terms and conditions as may seem to him reasonable and just, and likewise, in his discretion, he shall have power to operate said railroad, and in order to do this he may hire, or conditionally or absolutely purchase, the rolling stock, tools, and machinery necessary for the due equipment and operation of said railroad: provided, that the indebtedness for such equipment shall not exceed fifty thousand ($50,000) dollars; that the term of its creation shall not be for a period longer than two years, and the rate of interest shall not exceed 10 per cent. per annum. And the said trustee and receiver shall have power to secure the payment of such indebtedness, created for the purpose aforesaid, by chattel mortgage on the rolling stock, tools, and machinery purchased by him for the operation of said railroad, and also by a mortgage on said railroad, payable out of the earnings or income of said railroad, which he shall have power to pledge, mortgage, or hypothecate for such purpose; and said trustee and receiver shall have the power to execute the deeds, contracts, leases, mortgages, bonds, and obligations necessary to give effect to the powers herein granted him. The railroad herein mentioned is that described in the deed of trust annexed to plaintiff's complaint in this cause, and is known as the railroad connecting Folsom, in Sacramento county, with Shingle Springs, in El Dorado county, California, and which was constructed by the Placerville & Sacramento Valley Railroad Company."

We are of the opinion that court had power to authorize the trustee and receiver to make provision for operating the road so as to secure an income and profits. The powers conferred on the trustees by the mortgage authorized them, on the default in the payment of interest mentioned above, to take possession of the road and operate it, using the income and profits therefrom to make the payments above mentioned. This much is conceded by the counsel for appellant in his brief. It appears that the mortgagor company had no rolling stock or other equipments, and that the trustee and receiver, under the foregoing order of the court, did purchase some rolling stock and machinery, for the use of the road, for which he expended money in the discharge of his trust and incurred some indebtedness. The facts are set forth as follows in the findings:

"At the commencement of this suit the court, to whose jurisdiction over this case the present court succeeded, appointed a receiver to take possession of, manage, and control, and operate the railroad described in said trust mortgage, Exhibit A, pending the trial of this cause: which said receiver duly qualified and took and held possession of said railroad pursuant to the said order of court made in this cause. And in taking care of, protecting, and repairing the said property confided to his charge, and in purchasing rolling stock and machinery for the use of said road, and for counsel fees in rightfully and successfully defending suits brought against him as such receiver to recover the property in his charge, has paid, laid out, and expended the sum of $19,356.26, and has become entitled to the further sum of $800 for his services as such receiver, and his said account being now passed and approved for the foregoing causes and amounts; and there being in fact the sum of $20,156.26 due to said receiver."

The court also found other facts, as follows:

"That all the bonds issued under and secured by the trust mortgage, Exhibit A, attached to and made part of the complaint herein, have been paid, except those certain bonds made payable in currency, and numbered, respectively, 342, 343, 344, 345, 346, 489, 490, 498, 499, and 500.

"That on said bonds there was due and unpaid on the first day of July, 1882, the sum of $26.000, no part of which has since been paid. Said bonds (a copy of one of which is attached to the complaint, marked Exhibit B) were delivered by the railroad company executing them, in part payment for the railroad iron used in laying the track of said company's road described in said trust mortgage, Exhibit A.

"That one John G. Kittle was, at and before the commencement of this suit, and is now, the owner and holder of said bonds, having purchased them in good faith, and for their market value, but after some of the coupons on each of said bonds were past due and unpaid.

"That said trust mortgage is the valid act and deed of the Placerville & Sacramento Valley Railroad Company, and was executed at the time it purports to have been for the purposes therein set forth, one of which was to secure the payment of the principal and interest of the so-called currency bonds, the Kittle bonds aforesaid being part and parcel thereof. That subsequently to the execution of said trust mortgage A, and the issue of the currency bonds aforesaid, the Placerville & Sacramento Valley Railroad Company became indebted to the express and banking concern of Wells, Fargo & Co., for money borrowed, to the extent of $200,000, and for the purpose of securing the payment of such indebtedness, executed and delivered to Wells, Fargo & Co. a mortgage of its corporate property and franchise, be

ing the same embraced and described in said trust mortgage, Exhibit A. That default having occurred in the payment of said indebtedness, Wells, Fargo & Co. obtained a decree of foreclosure and order of sale, in the usual form, of the said mortgaged premises, and thereunder sold the same to one William Alvord for $166,400, who in time sold and conveyed the property so acquired by him to Messrs. Stanford, Huntington and Hopkins, who in time conveyed it to the defendant herein, styled the Sacramento & Placerville Railroad Company, of which corporation they are now, and were at the time mentioned, the principal stockholders. That the said Alvord and each of the purchasers aforesaid through him had, at the times of their respective purchases, notice of the said trust instrument, Exhibit A, and of the terms thereof, and of the bonds secured thereby, and took said property subject to and in subordination to the liens created thereby.

"The Placerville & Sacramento Valley Railroad Company, since the sale of its property as aforesaid to Alvord, has transacted no business, and has been insolvent, and has had but a nominal existence. It never owned any of the rolling stock or machinery wherewith its road was operated. The Sacramento & Placerville Railroad Company is the offspring of the amalgamation of the two railroad companies known as the Sacramento Valley' and the Folsom & Placerville,' and was, at the commencement of this suit, in the possession of the railroad described in the trust mortgage, Exhibit A, and was operating the same as part of its line between Sacramento and Shingle Springs, by way of Folsom."

The conclusions of law reached by the court were as follows:

"First. That the plaintiff, as surviving trustee, have delivered to him, by the receiver herein, the possession of the railroad described in said trust mortgage, Exhibit A, to be held by him subject to the trusts and conditions therein contained; and that plaintiff recover his costs herein (other than the receiver's costs) against the Sacramento & Placerville Railroad Company, taxed at $116.48. Second. That the sum of $20,156.26, due the receiver herein, be adjudged a lien against said railroad and paid, if necessary, by the sale thereof, and that the amount thereof be paid to him by the defendants herein within ten days after receiving, through their attorneys in this case, written notice of the entry of the final decree herein; and upon default being made in the payment of said sum, that the said plaintiff, as surviving trustee herein, shall, after giving such notices as are required by law in case of the sale of real estate under execution, sell to the highest bidder, for cash, said railroad, its franchises and equipments, and that he deliver possession thereof to the purchaser at said sale, upon the payment of the purchase money. That the money arising from said sale shall, after the costs of making such sale are paid, be disbursed as follows: (1) To the payment of the amount due the receiver as aforesaid; (2) to the payment of the costs of this suit, taxed as aforesaid; (3) to the payment of John G. Kittle, or to the holder of the said ten bonds described in finding 1 hereof, the sum of $26,000, with interest at the rate of 7 per cent. per annum from July 1, 1882; and (4) any remainder existing to the Sacramento & Placerville Railroad Company."

A decree was made in accordance with the foregoing decision. The following is the decree:

"This cause having been heretofore argued and submitted, and now having been duly considered, the court doth order, adjudge, and decree as follows, to-wit:

"That the plaintiff, as surviving trustee in the trust mortgage of March 14, 1864, a copy of which is attached to the complaint in this cause, is entitled to have the possession of that certain railroad, constructed by the Placerville & Sacramento Valley Railroad Company, which said railroad begins at the town of

Folsom, in Sacramento county, and which extends by the way of Latrobe to Shingle Springs, in El Dorado county, together with the rights of way of said railroad, its stations, side tracks, depots, and equipments, and all property appurtenant to said railroad.

"It is further ordered, adjudged, and decreed herein that the receiver, heretofore appointed in this cause, deliver said property to the plaintiff herein, as surviving trustee under said mortgage.

"And it is further ordered, adjudged, and decreed herein that the plaintiff recover the costs of this suit, (other than the receiver's costs,) taxed at $116.48 against the Sacramento & Placerville Railroad Company.

"It is further ordered, adjudged, and decreed that the amount due the receiver, settled at $20,156.26, be adjudged to be a lien against said railroad, its franchises and appurtenances, and paid by a sale thereof (if necessary) as hereinafter provided.

"It is further ordered, adjudged, and decreed that said defendants, within ten days after receiving, through their attorney, notice in writing of the entry of this decree, pay to the receiver in this case the sum of $20,156.26; and, upon default being made, it shall be the duty of the plaintiff, as surviving trustee aforesaid, to give such notices of the sale of said railroad, its franchises and appurtenances, as is done when real estate is required to be sold under execution, and, at the time and place appointed in such notices, (which must be between the hours of 10 A. M. and 4 P. M., and in front of the city hall of the city of San Francisco,) to proceed and sell the aforesaid railroad, its franchises and appurtenances, at public auction, to the highest bidder for cash; and shali, upon the payment of such bids, execute to such purchaser a proper conveyance of the property sold, and deliver him possession thereof. "It is further ordered, adjudged, and decreed that the plaintiff, as surviving trustee aforesaid, after deducting the costs and expenses of said sale, shall pay to the receiver the amount found due him as aforesaid, with legal interest from the date hereof; and shall then pay to John G. Kittle, or the holder of the ten currency bonds of the Placerville & Sacramento Valley Railroad Company, referred to in the findings, and numbered 342, 343, 344, 345, 346, 489, 490, 498, 499, and 500, on the surrender of said bonds, the sum of twenty-six thousand ($26,000) dollars, with interest thereon from July 1, 1882, at the rate of seven (7) per cent. per annum.

Any surplus remaining shall be paid to the Sacramento & Placerville Railroad Company."

It is objected that the expenditures of the trustee and receiver mentioned in the findings and decree are not a lien upon the road and property conveyed. If the expenses were reasonably incurred in the discharge of the trust, we see no reason why they should not be a lien. Trustees are entitled to a lien on the corpus of the trust property for all such disbursements. The law on this subject is so clearly laid down in Renssalaer & S. R. Co. v. Miller, 47 Vt. 152, that we insert here what is said in that case on the point:

"It is apparent in this cause that the trustees, Miller and Knapp, held a position such as to entitle them to charge, upon the subject-inatter of the trust, such compensation and reimbursement as they ought to have by reason of what they did and incurred in the administration of the trust. See Perry Trusts, 906, 907, 909, 910. They were holding their position for the behoof of all the parties interested in the subject of the trust; and, in the first instance, for the parties beneficially interested in the first mortgage, viz., the Rutland & Washington Railroad Company, mortgagor, and the holders of the bonds secured by said mortgage. The primary object of having said trus