David Josiah Brewer

“ The right to have a decree of foreclosure and sale is an absolute right on the part of the mortgagee, flowing from a breach of the conditions in the mortgage. But the appointment of a receiver is a matter resting largely in the discretion of the court,-not of course, an arbitrary, but a legal, discretion,-and depending, not simply upon the breach of condition in the mortgage, but also upon the question of relative injury and benefit to the parties and the public by the taking of the property out of the possession of the mortgagor, and placing it in the hands of a receiver. ”

“ In the case at bar, on defense, as shown by the exceptions taken to the report of the master, was that the claim of the intervener was not against the estate, but against some third party. That defense the receiver had a right to make. We do not mean that he alone can act. We do not stop to inquire what rights either party to the suit may have in this respect. All we now decide is that the receiver is a proper party to make the defense. ”

“ A receiver may defend, both in the court appointing him and by appeal, the estate in his possession against all claims which are antagonistic to the rights of both parties to the suit. For instance, he may thus contest a claim for taxes, because, if valid, they are superior to the rights of both parties; in a case like the present, superior to the rights of mortgagor and mortgagee. ”