plicable to the real facts disclosed by the record, and mostly incorrect as abstract propositions."

From these assignments it will be seen that all the propositions presented by plaintiff in error are dependent upon an examination of the evidence for their determination, except that part of the first assignment which states that the findings of fact made by the referee are incomplete and inconsistent with each other. The only inconsistency referred to by counsel for plaintiff in error in their brief is an alleged inconsistency between that part of the first finding of fact, which reads as follows: "After the making of the instrument (termed a contract) by the parties, the defendant Hale proceeded and operated thereunder in good faith until the commencement of this action"-and a subsequent finding incidentally relating to the date on which work on the mining property ceased, reading as follows: "I find from the plaintiff's evidence that at the time of defendant's ceasing work in March, 1902, partly at least, and I think principally, in consequence of this failure on the part of plaintiff to supply him with funds as agreed, the corporation (plaintiff) was owing him $1,286, which has never been paid or tendered to him." We see no such inconsistency between the findings complained of as would warrant a reversal of this case on that ground alone.

The first finding deals with the good faith of Hale in relation to everything it was his duty to do under the contract; the second has relation principally to the laches of the plaintiff in error, and while incidentally finding that the defendant in error ceased work in March, 1902, several months before the suit was commenced, yet the mere fact that he thus ceased work, for the reason stated in the finding, is not inconsistent with entire good faith on his part. All the other grounds of error argued by counsel in their brief require an examination of the evidence to determine whether they are well taken.

The record shows that on the 28th day of January, 1903, the court below made an order appointing the Honorable James F. Steck referee in said cause to settle the issues, hear the testimony, and make findings of fact and conclusions of law thereon; that on the 21st day of December, 1903, the cause came on for hearing before the referee, who heard the evidence in said cause, and on the 20th day of September, 1904, the referee made his report in said cause, which was filed in the office of the clerk of the district court. On the 15th day of October, 1904, on application of counsel for plaintiff in error, an order was made re-referring the same cause to the same referee for the purpose of allowing plaintiff's counsel to present the same to said referee and have allowed and certified by said court such exceptions as they desired to take to said report. In pursuance to this order counsel for plaintiff in error presented to the referee what they en

titled, "Plaintiff's exceptions to report of referee." There is no attempt to preserve the testimony taken at the trial before the referee in the record by this bill of exceptions. As this must be done in order to present the errors complained of by the plaintiff in error it follows that, aside from the question of inconsistency in the two findings hereinbefore set out, there is no other error argued by counsel for plaintiff in error in their brief or presented to this court that may be reviewed. The evidence is not before us, and therefore we cannot review it.

Where the findings of fact of a referee are in the main based upon the issues joined by the pleadings, it must be presumed by this court, in the absence of the evidence from the record, that there was sufficient testimony introduced at the trial to warrant the findings. The court may, on proper motion and exception to the conclusions of law of a referee, set the same aside, when they are inconsistent with the findings of fact, and render a different judgment, but the court may not set aside the findings of fact of the referee if they are substantially predicated upon the issues made by the pleadings, unless the evidence taken at the trial is preserved by bill of exceptions allowed and signed by the referee. "Where a cause is referred to a referee to find and report the facts and conclusions of law to the court, and no bill of exceptions is allowed and signed by the referee, preserving the evidence, the court cannot consider the question of the sufficiency of the evidence to support the findings of the referee." M. Iralson v. Jacob Stang et al., 18 Okl. 423, 90 Pac. 446.

The judgment of the court below is affirmed, all the Justices concurring.

(20 Okl: 427) ARDMORE NAT. BANK v. BRIGGS MACHINERY & SUPPLY CO. et al. (Supreme Court of Oklahoma. March 10, 1908.) 1. RECEIVERS TITLE OR RIGHT ACQUIRED BY. The receiver of an insolvent, nongoing corporation takes the property of the company for the creditors, subject to such equities, liens, or incumbrances, whether created by operation of law or by act of the corporation, which existed against the property at the time of his appointment.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Receivers, §§ 137-144.] 2. SAME

RIGHT.

TIME OF VESTING OF TITLE OR

The receiver's title and right to possession of the property of an insolvent, nongoing corporation vests from the date of the original order for the appointment, although the proceedings may not be perfected until a later date. The receiver's title and right to possession during the interval between such original order and the time of perfecting his appointment are superior to those of a judgment creditor who levies upon the property under his judgment during such interval.

[Ed. Note. For cases in point, see Cent. Dig. vol. 42, Receivers, §§ 126, 138.]

3. SAME REMEDIES TO ENFORCE LIENS.

Where a vendor, after the appointment of a receiver to take charge of the property and af

Company; and that it was recited in said notes that the title, possession, and ownership to said properties does not pass from the intervenor until the notes and interest are paid.

There were further allegations to the effect that the Oil Company was indebted to it upon four promissory notes all payable to its order at Birmingham, Ala., or Dallas, Tex., and aggregating the sum of $4,500, exclusive of interest and attorney's fees, said notes being described specifically as to date and maturity; that all the notes were past due, and only $50 had been paid thereon; that two of the notes dated January 1, 1902, were executed by the defendant for 6-106 Continental linter feeders and condensers, Inv. No. Br. 559, D. S. P., 239; and that it was recited in said notes that the title, possession, and ownership of the property should not pass from the intervenor Continental Gin Company until the notes were paid in full, and that the two notes dated July 31, 1902, were executed for one 3-70 Saw Munger Sliding Idler Gin outfit complete, with engine, boiler, pump, feeder, and connections, and it was recited in said notes that the title, possession, and ownership should not pass from the intervenor the Continental Gin Company until said notes were paid in full. Copies of the four notes were attached to the plea of intervention. It was also alleged that in all four of the notes it was provided that the intervenor should have full power to declare the same due and take possession of the property at any time it deemed itself insecure, even before the maturity of the notes, and that the intervenor deemed itself insecure, and had exercised the option given in the notes, which matured January 1, 1904, and it declared the same due and payable; that it had become necessary for the collection of said notes and the preservation of the intervenor's right in said property for suit to be brought; and that thereby the defendant became liable to the intervenor in the sum of 10 per cent. of the amount of the notes for attorney's fees, and that the intervenor had sued on the notes and employed counsel for that purpose. The prayer for relief read as follows: "Now this intervenor asks that it be given judgment against respondents for the amount due on said notes executed by respondents, and that also an order be entered herein establishing an indebtedness against the property described in said two mortgages executed by said J. D. Ray, who is hereby prayed to be made a party hereto, for the amount still due, including principal, interest, and attorney's fees, on the four notes thereby secured, and that this intervenor's lien and claim upon the property described in said four notes executed by respondent. and said mortgage executed by said J. D. Ray, to be superior to the lien and claim of all other persons, firms, and corporations upon said property. And intervenor further prays that it have fina judgment and a decree of foreclosure and sale in such terms and at such

times as shall best protect the rights of this intervenor and all other creditors holding liens upon said property above described. And this intervenor further prays for all other general and special relief to which it may be entitled in the premises in any way." There is no controversy in relation to the four notes executed to J. D. Ray or the mortgages given to secure their payment above mentioned, so they need not be taken into account in this case.

The Gin Company also joined the complainants in a motion which was presented to Judge Townsend, wherein it was alleged that the "complainants in said original bill and intervenor the Continental Gin Company, being the movants herein, are the only creditors holding liens upon the said physical effects, and that any deterioration in the value of said property and any expense incurred in keeping the same will occasion loss and charges that will diminish their security; that they hold valid first liens upon said physical properties, and that they have brought their appropriate bill to foreclose the same; and that said security is likely to be, and will most certainly be, deteriorated and diminish in value, if the same is held in charge of the receiver until the end of the litigation. Movants further show the court that it is now a seasonable time to sell said physical property, and that they are advised and believe that the same can be sold to better advantage within the next 30 days than at a later date, and that such sale will prevent the diminution of their security by waste or expenses of keeping. Wherefore movants pray that the court grant an order directing the sale of the physical property of respondent (defendant) as set out in complainants' original bill, and appoint a commissioner to make said sale in accordance with the deed of trust of the complainants, and all the liens and mortgages of the intervenor set out in extent in complainants' original bill, and that the court do fix an upset price for which the property may be sold, and designate the time and place of sale, and for such other and further orders as in the discretion of the court may be necessary or proper to fully protect the movants' rights and equities herein." On the 2d day of March, 1904, the Gin Company filed its second amended plea of intervention stating the facts as to the reservation motes practically as in its former plea, but stating that without in any way waiving its rights under its reservation of title notes, it was willing to let the court foreclose them as chattel mortgages if it would inure to the benefit of all the creditors of the Oil Company. The prayer for relief in relation to the reservation notes was as follows: "Now this intervenor asks that an order be entered herein establishing an indebtedness against the property described in said two mortgages executed by J. D. Ray, who is hereby prayed to be made a party hereto, for the full amount still due, including principal, interest, and attorney's fees, on the four notes thereby

secured, and if the court should deem it best and equitable to treat the conditional sale evidenced by said four notes as a mortgage, to give this intervenor judgment for the amount due on said four notes executed by respondent, including principal and interest, together with a foreclosure of the lien securing said four notes on the property therein described, and if the court should deem it best not to treat said conditional sale as a mortgage, that this intervenor be given judg-| ment establishing its ownership to said property described in said four notes, and ordering the receiver herein to deliver possession of the same to this intervenor, and that this intervenor's lien upon the property described in said mortgages executed by said J. D. Ray be adjudged superior to the lien and claims of all other persons, firms, and corporations upon said property described in said mortgages, and that no other person, firm, or corporation be allowed to acquire any right, title, interest, or claim in and to, or lien upon, said property described in said notes executed by respondents until this intervenor's claims upon said property and rights to said property shall have been fully protected. And this intervenor further prays that it have final judgment, and a decree of foreclosure and sale as to the property described in said mortgages executed by J. D. Ray, and a decree protecting this intervenor's rights in and to said property described in said four notes executed by respondent, and that this court enter such orders as will best protect the rights of this intervenor and of all other creditors holding claims to or liens upon said property above mentioned. This intervenor prays for all other relief, both general and special, to which he may be entitled to in the premises in any way."

On the 19th day of February, 1904, the appellant, the Ardmore National Bank, filed its original plea of intervention claiming a lien on the property in controversy under and by virtue of a judgment against the Oil Company, and execution issued thereon, and liens established by equitable proceedings in the nature of bills of discovery. On the 30th day of March it filed its amended plea of intervention. The judgment of the Ardmore National Bank against the Oil Company on which it bases its right to a lien was rendered on the 31st day of October, 1903, and execution was issued thereon on the 2d day of February, 1904, and returned unsatisfied.

There is no dispute between the parties to this suit in regard to the amounts due from the Oil Company to the various creditors. Nor is there any dispute as to the execution and delivery of the instruments under which the appellees claim liens, nor that they were prior in time to the judgment and proceedings under which the appellant claims a prior lien. The appellant contends: First: That the Gin Company, by its original plea of intervention, and by joining the complainants in their motion to sell the property, had waived its rights under the reservation of

title notes; that the Gin Company treated the notes as chattel mortgages, and attempted to foreclose them as a lien upon the property by its original plea of intervention, and the title and ownership thereto became thereby divested out of the Gin Company and passed to the Oil Company; and that the Gin Company having treated the reservation notes as chattel mortgages in its original plea, it was estopped from reasserting title by amended plea, and the notes being unrecorded, they were not available as prior liens against the liens asserted by the appellant. Second. That the deed of trust attempted to be foreclosed by the complainants was illegal and void, because it was never legally acknowledged and recorded; that the notary who took the acknowledgment was disqualified and incompetent to take such acknowledgment, for the reason that he was beneficially and financially interested in said deed; that at the time he took the acknowledgment he was a stockholder and a director and treasurer of the Oil Company, the grantor, and owed a considerable sum of money on unpaid stock subscriptions. The foregoing were substantially the issues presented below, and the trial resulted in a judgment in favor of the complainants and the intervenor the Gin Company, and against the appellant, the Ardmore National Bank.

The general jurisdiction of equity over corporate bodies does not extend to the power of dissolving corporations or winding up their affairs and sequestrating the corporate property and effects, in the absence of express statutory authority. But in most of the states of this country the general jurisdiction of courts of equity has been enlarged to the extent of authorizing the appointment of receivers in behalf of creditors and shareholders. These statutes greatly enlarge the powers of courts of equity over property and management of insolvent, nongoing corporations. Section 3488 of the Indian Territory Annotated Statutes of 1899, the statute in force in the Indian Territory when this proceeding was commenced, provides as follows: "Whenever, in any case, a receiver shall be appointed for a corporation or the trustees thereof, or any copartnership or joint-stock company, and the order or decree of the court, judge or chancellor shall be that the lands, tenements, goods, chattels, funds, assets, moneys, credits, choses in action, rights and interests of every kind, and nature, either in law or equity, or any part thereof, belonging to the same, shall be placed in the hands of such receiver, he shall from thenceforward, until the further order or decree of the court, judge or chancellor, have full possession, custody and control thereof, and shall be vested with the title, so far as it shall be necessary to collect debts, preserve the assets and property for the benefit of creditors and all persons interested, and may and shall bring and prosecute and defend all suits in his own name that may be necessary,

for that purpose." It has been held by the Supreme Court of Wisconsin, in Atchison v. Davidson, 2 Pin. 48, under a statute similar to the above, that receivers of corporations are appointed for the benefit of the creditors, with power and authority to collect and pay over to them the assets. The choses in action of the corporation are in the possession of the receiver for the creditors, and are to all intents and purposes the property of the creditors. The receiver of an insolvent corporation stands as the representative both of the creditors and the corporation and of its shareholders. He is not therefore the agent or representative of the corporation exclusively, but is regarded rather as a trustee for both creditors and shareholders. Gillet v. Moody, 3 N. Y. 479; Talmage v. Pell et al., 7 N. Y. 347; Libby v. Rosekrans, 55 Barb. (N. Y.) 202; Alexander v. Relfe, 74 Mo. 495; Angell v. Silsbury, 19 How. Prac. (N. Y.) 48. The receiver of an insolvent, nongoing corporation takes the property of the company for the creditors, subject to such equities, liens, or incumbrances, whether created by operation of law or by act of the corporation which existed against the property at the time of his appointment.

It is admitted by all the parties to this suit that at the time the receiver was appointed the Oil Company was an insolvent, nongoing corporation, and that the property described in the reservation notes was the property of the Gin Company. The appellant concedes this, but insists that after the receiver was appointed the Gin Company lost its place of vantage by treating its reservation notes as chattel mortgages, and not complying with the registration law governing such instruments. Under the laws of Arkansas an unrecorded chattel mortgage is good between the parties, and, if we are right on the proposition that the possession of the receiver is the possession of the creditors, it must follow that, even treating these reservation notes as chattel mortgages after the property came into the hands of the receiver, would avail the appellant nothing. "A chattel mortgage, though not filed for record, is a valid security between the parties; and when, by virtue of it, the mortgagee takes possession of the mortgaged property after condition broken, this is an appropriation of it to the debt secured, and his title is good against a creditor of the mortgagor who subsequently attaches the property in his possession." Applewhite v. Harrell Mill Co., 49 Ark. 279, 5 S. W. 292. The receiver's title and right to possession of the property of an insolvent, nongoing corporation vests from the date of the original order for the appointment, although the proceedings may not be perfected until a later date. The receiver's title and right to possession during the interval between such original order and the time of perfecting his appointment are superior to those of a judgment creditor who levies upon the property under his judgment during such interval.

High on Receivers, 8 136; Rutter v. Tallis, 5 Sandf. (N. Y.) 610; Steele v. Sturges, 5 Abb. Prac. 442. We do not believe, however, that the acts of the Gin Company amounted to a waiver of any of its rights under its reservation notes. It was within the power of the court to grant the Gin Company the relief it did under its original plea of intervention. In both pleas it stated the facts in substantially the same language, showing to the court the exact circumstances surrounding the transaction. It is true that in the original plea the Gin Company asked to have its lien under its reservation notes foreclosed. But it also asked for such other and further orders as in the discretion of the court may be necessary and proper to protect its rights and equities, which, in effect, amounted to a prayer of general relief. In its amended plea it expressed a willingness to have the property covered by its notes sold and the notes treated as chattel mortgages, if the court found that it would be to the advantage of all the creditors to do so, and closes its plea with a prayer for general relief. Under a prayer for general relief the court may grant any relief that the facts stated will warrant, although such relief be inconsistent with the special relief prayed for. Cook v. Bronaugh, 13 Ark. 187; Kelly v. McGuire, 15 Ark. 555; Shields v. Trammell, 19 Ark. 62; Chaffe & Bro. v. Oliver and Wife, 39 Ark. 531. In Cook v. Bronaugh, supra, the Supreme Court of Arkansas says: "Where there is a prayer for specific relief, and also a general prayer for relief, if the state of case as presented by the bill should not be sustained in evidence, or the court should, upon principles of equity, refuse the specific relief, it may, notwithstanding, give to the complainant under his general prayer any relief warranted by the facts as set forth in his bill." From an examination of the record it is quite obvious why the Gin Company and the other lienholders, including the appellant herein, were willing to have the property sold in bulk by the receiver. The following is taken from an agreed statement of facts signed by the attorneys for the complainants, the attorneys for the Gin Company, and the attorneys for the Ardmore National Bank (this part of the agreement has relation only to the property in dispute between the Gin Company and the appellant): "Ninth. It is agreed that the property described in said four notes executed by the defendant to the Continental Gin Company was used in the proper operation of an oilmill, and that it is usual and customary for an oilmill to own gins in connection with their business, and that the property of the defendant, taken as a whole, was worth more than would have been the aggregate value of the different portions of said property taken separately. Tenth. It is agreed that all the property described in the complainants' amended complaint and in said plea of intervention of the Continental Gin Company has been sold in this case under an order of the