#### A. S. JONES v. CHRISTIAN JONES.

(Filed 16 April, 1924.)

1. Pleadings — Statutes—Presumptions.

Under the provisions of chapter 92, section 1, subsections 2 and 3, Public Laws, Extra Session of 1921, it will be presumed on appeal that the complaint in a civil action was filed on or before the return day of the summons, nothing .else appearing, according to the time thereof therein specified.

*5902. Same — Defendant’s Bond to Retain Possession of Lands.

When the complaint'in an action has not been served with the summons, the defendant has twenty days after its return date in which to answer or demur; and when the defendant is in possession of land, and the action is to recover the land, the defendant has also twenty days, under the circumstances, before pleading, in which to file the bond required, O. S., 495, conditioned upon his paying to plaintiff all costs and damages which the latter may recover, including damages for the loss of rents and profits. Chapter 93, section 1, subsections 2, 3, Public Laws, Extra Session 1921.

3. Sam© — Receivers—Remedy at Law.

In an action to recover real property or its possession, upon the approval of the defendant’s bond by the clerk of the Superior Court for continued possession, C. S., 495, when the defendant has given it in compliance with the statute, the plaintiff has an adequate and sufficient remedy at law upon the bond of the principal and surety so given and approved, and the equitable right to the appointment of a receiver, C. S., 860, sec. 1, is not available to the' plaintiff, it appearing that a money demand will sufficiently compensate him.

á. Same — Appeal and Error.

Held, upon the record in this appeal, involving only the plaintiff’s right to the appointment of a receiver for the defendant, the question of the sufficiency of the allegations of the complaint to state facts sufficient to constitute a cause of action to set aside defendant’s deed to the lands in controversy does not arise.

This was an application for the appointment of a receiver, beard before Lane, J., at chambers, Foesyth. Appeal by defendant.

John C. Wallace and Graves, Brock & Graves for plaintiff.

Parrish & Deal for defendant.

Clarkson, J.

The record shows that summons was duly issued out of the Superior Court of Forsyth County on 30 July, 1923, by plaintiff against defendant, returnable 14 August, 1923, and the summons was duly served on the defendant. It is presumed the complaint was filed in the clerk’s office on or before the return day of the summons, 14 August.

The defendant had 20 days in which to answer or demur after the return day, 14 August. ' ■

Public Laws, Extra Session 1921, ch. 92, sec. 1, subsecs. 2 and 3, are as follows:

> “Subsection 2. The complaint shall be filed on or before the return day of the summons: Provided, for good cause shown the clerk may extend the time to a day certain.

> “Subsection 3. The answer or demurrer shall be filed within twenty days after the return day, or after service of the complaint upon each *591of tbe defendants, or within twenty days after tbe final determination of a motion to remove as a matter of right. If tbe time is extended for filing complaint, tben tbe defendant shall have twenty days after tbe final day fixed for such extension in which to file tbe answer or demurrer, or after service of tbe complaint upon each of tbe defendants (in which latter case tbe clerk shall not extend tbe time for filing answer beyond twenty days after such service): Provided, in cases where tbe complaint is not served, for good cause shown, tbe clerk may extend tbe time to a day certain.”

Tbe complaint seems to be in tbe nature of an action to recover real property and tbe rents and profits and to set aside a deed.

C. S., 495, is as follows: “In all actions for tbe recovery or possession of real property tbe defendant, before be is permitted to plead, must execute and file in tbe office of tbe clerk of the Superior Court of tbe county where tbe suit is pending an undertaking with sufficient surety, in an amount fixed by tbe court, not less than two hundred dollars; to be void on condition that tbe defendant pays to the'plaintiff all costs and damages which tbe latter recovers in tbe action, including damages for tbe loss of rents and profits.” ,

Before tbe time to plead expired, defendant, on 22 August, 1923, filed a bond in due form, in tbe sum of $750, with A. B. Brewer as surety, for costs, damages and rents and profits, in accordance with tbe above statute. Tbe bond was a justified one and approved by tbe clerk of tbe Superior Court of Forsyth County. Tbe defendant bad 20 days after 14 August — return day of summons — before be pleaded, in which to file tbe bond, which was done and within tbe time. Defendant pleaded by filing a demurrer to tbe complaint on tbe ground “that tbe plaintiff has declared on inconsistent causes of action.” Tbe complaint was amended, or modified, and answer filed by defendant. The bond before tbe clerk was filed without any order of court. Plaintiff applied before tbe judge of tbe court below for a receiver, which was granted, and from tbe judgment appointing a receiver, defendant appealed.

We think from tbe nature of tbe action, as we construe tbe allegations in tbe complaint, that tbe defendant pursued tbe legal course by filing tbe bond under C. S., 495. (See Battle v. Mercer, ante, 447.) We infer that tbe action is to recover real property, tbe rents and profits, and set aside a deed. Whether this can be done under tbe allegations in tbe complaint and tbe terms of tbe deed we do not now pass'upon. Tbe matter passed on here only relates.to tbe receivership, but, as to tbe language in tbe deed asked to be set aside, we call attention to Fleming v. Motz, post, 593.

*592It was not necessary for defendant to get an order of court or authority from the court to file the bond from the view we take of the case. The statute makes provision and -it is a matter of right. If the bond given for costs, damages, rents and profits, under C. S., 495, supra, which was approved by the clerk, is not sufficient, upon proper proofs, the case being now in the Superior Court, at term, for trial upon the issue, the court below would have discretion to increase the bond. The defendant as a matter of right filed the bond under section 495, and did so in due time. The statute was passed to protect the rights of plaintiff by requiring defendant .to give bond in cases of this nature, as we construe the complaint.

C. S., 860, sec. 1, is as follows: “Before judgment, on the application of either party, when he establishes apparent right to property which is the subject of the action and in the possession of an adverse party, and the property or its rents and profits are in danger of being lost or materially injured or impaired, except in cases where judgment upon failure to answer may be had on application to the court,” etc., a receiver may be appointed.

The language of the statute is “'When he establishes apparent right to property,” etc.

There is no allegation that the defendant is insolvent. It is alleged that “plaintiff will suffer irreparable injury,” but the facts all show that any injury that may be suffered can be measured by compensation in money.

The appointment of a receiver is equitable in its nature and based on the idea that there is no adequate remedy at law, and is intended to prevent injury to the thing in controversy; the power is inherent in courts possessed of equitable jurisdiction. The right must be clearly shown, and there is no other remedy that is safe or expedient.

High on Receivers (3 ed.), sec. 8, says; in part: “The appointment of a receiver pendente lite, like the granting .of an interlocutory injunction, is to a considerable extent a matter resting in the discretion of the court to which the application is made, to be governed by a consideration of the entire circumstances of the case. -And where the court is unable to see any benefit will result from appointing a receiver in the cause, or that any injury will follow from refusing the relief, it will not interfere, especially if it is apparent that great confusion and difficulty in the management of the property may result to both parties from a receivership. So if, upon a consideration of all the circumstances of the case, it is apparent that greater injury will ensue from appointing a receiver than from leaving the property in its present possession, or if other considerations of propriety or of convenience render the appointment improper or inexpedient, the court-will refuse *593to interfere.” Hanna v. Hanna, 89 N. C., 68; Thompson v. Pope, 183 N. C., 124; Tobacco Assn. v. Bland, ante, 361.

On the uncontroverted facts of the entire record we think, under the facts and circumstances of this case, -that as the statute allows bond to be given in a case of this nature, as we now construe the allegations of the complaint, and the bond having been given, that the appointment of a receiver is unnecessary, as the bond protects the rights of plaintiff until the matter is adjudicated. The entire record shows an unfortunate family difference. "We think the ends of justice will be met by dissolving the receivership appointed in the cause, which, under the circumstances, would naturally entail expense to litigants, both living in the same home and carrying on farming operations. The bond filed on 22 August, 1923, by defendant, with A. B. Brewer as surety, for costs, damages and loss of rents and profits, shall be and continue operative and binding on the defendant and his surety, according to its tenor.

For the reasons given, the judgment below is

Modified and affirmed.