6. It is held, that the vendor, under the facts, circumstances, and pleadings above referred to, cannot have a receiver to take possession of and conserve the crop so raised, after its severance, for the purpose of subjecting it to his claim for the value of the use and occupation of the premises after forfeiture by the vendee of his contract of purchase.

Opinion filed November 23, 1910.

Appeal from the District Court of Billings county; Crawford, J. Action to determine adverse claims to real property. From an order denying plaintiff's application for the appointment of a receiver pendente lite, plaintiff appeals.

Affirmed.

Purcell & Divet and MacFarlane & Murtha, for appellant.

Failure of one party to perform authorizes the other to abandon the contract. Stanford v. McGill, 6 N. D. 543, 38 L.R.A. 760, 72 N. W. 938; Giltner v. Rayl, 93 Iowa, 16, 61 N. W. 225.

So an attempted modification. Egger v. Nesbitt, 122 Mo. 667, 43 Am. St. Rep. 596, 27 S. W. 385; Crabtree v. St. Paul Opera-House Co. 39 Fed. 746; Ortman v. Weaver, 11 Fed. 358; 3 Page, Contr. 88 1436-1443; Johnson Forge Co. v. Leonard, 3 Penn. (Del.) 342, 94 Am. St. Rep. 86; Stephenson v. Cady, 117 Mass. 6; Bryson v. McCone, 121 Cal. 153, 53 Pac. 637.

Defendant is a trustee in possession of lands, liable to account for rents and profits. Rev. Codes, 1905, §§ 5710, 5711; Stebbins v. Demorest, 138 Mich. 297, 101 N. W. 528; Page v. Fowler, 39 Cal. 412, 2 Am. Rep. 462; McGinnis v. Fernandes, 135 Ill. 69, 25 Am. St. Rep. 347, 26 N.E. 109; 2 Story, Eq. Jur. §§ 1254-1266; Bullard & T. Tr. p. 113; Crooks v. Whitford, 40 Mich. 599; 3 Pom. Eq. Jur. 88 1051-1053; American Soda Fountain Co. v. Futrall, 73 Ark. 464, 108 Am. St. Rep. 64, 84 S. W. 505; Humphreys v. Butler, 51 Ark. 351, 11 S. W. 479; Rieper v. Rieper, 79 Mo. 352; Boylan v. Deinzer, 45 N. J. Eq. 485, 18 Atl. 119; Huntley v. Denny, 65 Vt. 185, 26 Atl. 486; Paige v. Akins, 112 Cal. 401, 44 Pac. 666.

Heffron & Baird and J. A. Miller, for respondent.

Receiver may be appointed to hold crops in ejectment. Ireland

v. Nichols, 37 How. Pr. 222; American Freehold Land Mortg. Co. v. Turner, 95 Ala. 272, 11 So. 211; Hendrix v. American Freehold Land Mortg. Co. 95 Ala. 313, 11 So. 213.

Inability to attach is a reason for receivership. Bitting v. Ten Eyck, 85 Ind. 357; Ulman v. Clark, 75 Fed. 868; Whitney v. Buckman, 26 Cal. 448, 10 Mor. Min. Rep. 428; Flagler v. Blunt, 32 N. J. Eq. 518; People v. New York, 10 Abb. Pr. 111.

Party cannot recover for use and occupation of land and the crops too. Rev. Codes, 1905, § 7520; Aultman & T. Co. v. O'Dowd, 73 Minn. 58, 72 Am. St. Rep. 603, 75 N. W. 756; Churchill v. Ackerman, 22 Wash. 227, 60 Pac. 406.

Where a trespasser sows a crop and harvests it, he can hold it against the landowner. Churchill v. Ackerman, 22 Wash. 227, 60 Pac. 406; Adams v. Leip, 71 Mo. 597; Jenkins v. McCoy, 50 Mo. 348; Harris v. Turner, 46 Mo. 438; Brothers v. Hurdle, 32 N. C. (10 Ired. L.) 490, 51 Am. Dec. 400; Faulcon v. Johnston, 102 N. C. 264, 11 Am. St. Rep. 737, 9 S. E. 394; Hinton v. Walston, 115 N. C. 7, 20 S. E. 164; Page v. Fowler, 39 Cal. 412, 2 Am. Rep. 462; Groome v. Almstead, 101 Cal. 425, 35 Pac. 1021; Johnston v. Fish, 105 Cal. 420, 45 Am. St. Rep. 53, 38 Pac. 979; Stockwell v. Phelps, 34 N. Y. 364, 90 Am. Dec. 710; Phillips v. Keysaw, 7 Okla. 674, 56 Pac. 695; Lindsay v. Winona & St. P. R. Co. 29 Minn. 411, 43 Am. Rep. 228, 13 N. W. 191; Woodcock v. Carlson, 41 Minn. 542, 43 N. W. 479; Aultman & T. Co. v. O'Dowd, 73 Minn. 58, 72 Am. St. Rep. 603, 75 N. W. 756.

Crops severed are personal property. Phillips v. Keysaw, 7 Okla. 674, 56 Pac. 695.

SPALDING, J. This case is here on appeal from an order denying plaintiff's application for the appointment of a receiver to take charge of and conserve a crop of wheat grown upon section 13 in township 138 N. of range 106 W., in Billings county, North Dakota, during the season of 1909. The action was brought in August, 1907, and the original complaint is substantially in the statutory form for the determination of adverse claims to real estate. The relief demanded is the customary relief sought in such actions and that plaintiff recover $500 as the value of the use and occupation of the premises. The

answer denies most of the allegations of the complaint, and sets forth a contract, wherein plaintiff agreed, on the 18th of January, 1906, to sell and convey to defendant, by warranty deed, upon the performance by defendant of his part of the agreement, said section 13. The consideration which defendant agreed to pay was $8,000, and it was to be paid by conveying by warranty deed, free from encumbrance, certain property in Sioux Falls, South Dakota, at a consideration of $4,200, to be deeded to plaintiff on its delivering to defendant executory contracts covering said section 13 showing certain balances due thereon. The first act to be done by the plaintiff was to furnish the defendant executory contracts which it held for such land, it not then having the title. The papers were to be exchanged on or before April, 1906. It is then alleged in the answer that the defendant then was, and had been at all times, ready and willing to perform his part of such contract, but that plaintiff had failed and neglected to perform his part thereof, and judgment was demanded by the defendant finding the amount due plaintiff, and directing it to convey such land in accordance with such contract. In September, 1909, on the return of an order to show cause, amended and supplemental complaints were allowed to be served and filed. The only variance between the original and amended complaints necessary to note consists in alleging the value of the use and occupation of said section 13 as $1,000 per annum, instead of $500, and that defendant's claims were in bad faith. The supplemental complaint alleges that the defendant had, without authority of law and in bad faith, entered upon said land in 1908 and cropped 320 acres thereof, and had never accounted to plaintiff therefor, and that such crop was of the value of $2,500; that in 1909 he had in the same manner again entered and cropped 320 acres of said land, and it is alleged that at the time said complaint was drawn, namely, September 1, 1909, such crop was either being or about to be harvested and was of the value of $3,000. Included in the relief asked is a prayer that the court adjudge the crop raised during the year 1909 to be the property of the plaintiff, free and clear of all claims of defendant, and for the appointment of a receiver pendente lite to take charge of and conserve the same. A hearing was had upon the application for the receivership, and we gather from the evidence there submitted that the controversy between the parties had related to the duty of the plaintiff to show title in itself

before defendant could be required to deed the Sioux Falls property, the defendant laboring under the belief that plaintiff must show title in itself. Martinson v. Regan, 18 N. D. 467, 123 N. W. 285. There is a conflict in the evidence as to whether plaintiff ever submitted the contract called for to the defendant, or demanded the delivery of a deed in exchange therefor. One of plaintiff's witnesses testified that on May 10, 1907, notice was served on defendant of the cancelation of the contract in question for default therein, in all things in accordance with §§ 7494 to 7497, Rev. Codes 1905, and that such notice became effective June 11, 1907, but the notice was not placed in evidence and the statements of the witness were mere conclusions of law. We shall, however, consider the matter as though proof of legal service of the necessary notice to declare the contract forfeited and canceled had been made. The defendant paid no attention to such notice, but remained in possession without disturbance and with no demand ever made for the surrender of his possession and the evidence fails to disclose that the plaintiff was ever in actual possession or occupancy of the premises. For some reason issue was not joined on the original complaint until December, 1908, or January, 1909, and no answer had been served to the amended and supplementary complaints, a demurrer thereto being pending. The evidence shows that the crop was severed not less than two weeks before the amended and supplementary complaints were served and the application for a receiver heard. The trial court, in its order refusing to appoint a receiver, found that the defendant was insolvent, and that as a matter of discretion, on the facts before it, a receiver was necessary to protect the plaintiff's rights in the crop of 1909, but that as a matter of law the court was without legal authority to appoint a receiver. Upon notice that the plaintiff would appeal, an order was entered permitting the defendant to dispose of the crop and deposit the proceeds, with the exception of $500, in any reputable banking institution in Billings county, subject to the order of the court. No objection was made to this order by either of the parties. It is apparent that the court found that plaintiff had some rights in the crop of 1909. In this we do not concur. Much is said in the brief about the fact of the bad faith of the defendant, and much stress is laid by appellant on the evidence showing bad faith, and it is contended that the rights of the plaintiff are dependent, to some extent,

upon that question. From our view of the law as applied to the facts. before us, we deem it immaterial whether defendant was acting in good or bad faith. Many interesting questions are raised and discussed, but, for reasons which it is unnecessary to state, an immediate decision of this appeal is imperatively necessary, and we cannot devote the time necessary to a determination of any questions except these which we consider essential to a bare decision of plaintiff's right to a receiver.

One of appellant's contentions is that, under § 5710, Rev. Codes 1905, which makes one who wrongfully retains a thing an involuntary trustee thereof for the benefit of the owner, and § 5711, providing that one who gains possession of a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it, defendant is a trustee of the grain raised during the season of 1909 for its benefit. We need not determine whether either of these provisions might ever be applicable to the facts disclosed on the hearing, because plaintiff itself has effectively disposed of this contention. It concedes that the landowner may elect to take the value of the use and occupation or certain other damages, or that he may waive the value of the use and occupation and elect to take the crop. In the case at bar plaintiff, in bringing this action, elected in a most effective manner to claim only the value of the use and occupation of the premises from defendant. This election was made August 6, 1907, and until September, 1909, no step is shown to have been taken by plaintiff in any manner disaffirming its election so made, and such election was reaffirmed in its amended complaint. In the original complaint it did not intimate that it claimed to be the owner of the crops which had been or might be raised by the defendant; it stood by and permitted the defendant to crop the land for two seasons after making this election, and only sought to disaffirm it when the defendant, by his industry aided by the favorable elements of nature, had raised and harvested a crop valued at over $6,000. It would seem that, as long as poor or ordinary crops were raised, plaintiff was content to rest upon its claim for the value of the use and occupation of the premises. It is clear, in the absence of such concession on its part which is made in its brief, that it is not, under the circumstances of the case, entitled