majority"> Ashe, J.

(after stating the facts). The facts of the case are so imperfectly stated, that we are not certain that we can cometo a correct conclusion upon the point presented by the appeal from the ruling of the Judge, in appointing a receiver to take charge of the real estate of W. C. Faucette.

The will of 1879, which was admitted to probate in 1883, gives all the property of the testator, to his sister Sally A. Fau-cette, and his brother Henry C. Faucette, one-half to each; and if either should die without children, then his or her part to go to the survivor. The case shows that Henry C. Faucette died before the testator, and we take it, unmarried and without children. But whether Sally still lives, does not appear, and there is nothing in the case to show how Rosa J. Bryan is entitled to the land that belonged to the testator, except in the affidavit filed by Jno. M. Mooring, as the basis of his application for a receiver, where it is stated that Rosa J. Bryan is sole heir and devisee under the will of 1879. We must assume that this statement would not have been made, if she did not claim title to the land in some way under the will, possibly as heir to Sally A. Faucette, who may be dead. Butin any way, it seems to be conceded by the propounded of the last will, that she claims as heir, and is in possession of the land, and in receipt of the rents and profits. That being so, ought she to be deprived of the enjoyment of the rents and profits, before the caveators shall establish their right to the land, which can only be done by establishing the will of 1880, as the last will and testament of W. C. Faucette.

They assert, that by the verdict of the jury, they have at least shown an apparent right to the land, and that is sufficient, although there has been an appeal in the case, to give them a receiver to take charge of the land, to secure the rents *698 and profits, and hold them subject to the final determination of the case, leaving open the issue of devisavit vel non. But admitting that the verdict of the jury has established an apparent right, that of itself was no sufficient ground for the interposition of the Court, to take the land into the custody of the law, and deprive the owner of the pernancy of the profits. One essential element in the exercise of this extraordinary jurisdiction of the Court, is the danger of the property being lost, or its value greatly impaired — as in the case of rents and profits of land, that they will be squandered and lost by the insolvency of the party in possession. Hence, in such a case, it is necessary that the insolvency of the party in possession should be alleged and shown. This rule is expressly laid down in the case of Twitty v. Logan, 80 N. C., 69, where it is held, “an order appointing a receiver will not be made, when the party applying for the same has not established an apparent right to the property in litigation, and when it is neither alleged nor shown, that there is a waste or injury to the property, or loss of the rents and profits, by reason of the insolvency of the adverse party in possession.

In Rollins v. Henry, 77 N. C., 467, it was held by the Court, that “ whenever the contest is simply a question of disputed title to property, the plaintiff asserting a legal title in himself, against a defendant in possession, receiving the rents, &c., under a claim of legal title, even if the defendant is insolvent, a receiver will be appointed, only when plaintiff sets forth an apparently good title, not sufficiently controverted in the answer, and shows imminent danger of loss by defendant’s insolvency.”

The rule laid down iu the first cited case, and the case of Rollins v. Henry, supra, is fully and directly supported by Vane v. Woods, 46 Miss., 120, where it is held “the defendant will not be deprived of his possession by a receiver, unless it is made to appear that there is a great risk of ultimate loss of the property, and insolvency on the part of the defendant, so that he will be unable to respond to a final decision,” and High on Receivers, thus lays down the doctrine: “There are two conditions, both *699 of which must combine to warrant a Court-of Equity in granting a receiver as against a defendant in possession. These conditions are, first, that plaintiff must show a strong ground of title, with a reasonable probability that he will ultimately prevail ; and second, that there is imminent danger to the property or its rents and profits, unless the Court shall interpose.”

But in this case, there is no allegation of the insolvency of Rosa J. Bryan. There is no statement in the affidavit of John M. Moring that she is insolvent, and that she will be unable to respond to the final judgment in the case, in consequence of her-insolvency, and this, as shown from the authorities cited, is an essential condition to be alleged and- shown, in a proper case for the appointment of a receiver to take into possession lands, or the rents and profits thereof, that may be the subject of the litigation.

But, moreover, we do not think this a proper case for a receiver of the lands and rents, &c. It is not an action to recover land, and to secure the rents and profits, as incidental to the final recovery; but a proceeding to establish a paper writing as a last will and testament, and we are not aware of any authority for the appointment of a receiver in such a case.

Our conclusion, therefore, is, that there was error in so much of the order made in the Court below, as gave to the receiver authority to take charge of the rents and profits of the land possessed by W. C. Faucette at his death, and enjoining R. J. Bryan and E. H. Bryan, and their agents, from receiving or interfering with the said land and the rents and profits thereof, and so much of the said order is reversed.

Let this be certified to the Superior Court of Chatham county.

Error. Reversed.

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