Opinion of the Court. by the said E. A. Reed and H. H. Henderson, and a copy of which is hereto attached, then the above obligation to be void; else to remain in full force and virtue." It will be observed that, by the terms of the contract, the deed of conveyance was not to be made until the purchase money had been paid in full, but the recital in the bond calls for the making and delivery of the deed on or before the first day of October, 1890. The solution of the difficulty thus created will be found by reading the bond in the light of the contract, to secure the performance of which was the purpose of the bond. That contract provided, indeed, that the vendors should execute and deliver a proper deed, but also provided that the title should not pass until the deferred payments were made. To construe the bond as compelling a conveyance before such payments were made would deprive the vendors of the security given. them by retaining the title and also of their stipulated right to forfeit the cash payment and rescind the sale, if the payments were not made as provided in the contract. The obligatory portion of the bond was expressly made dependent on the proviso that Coughran and Cottrell should comply with their portion of the contract that day made and a copy of which was attached, one of the terms of which was that the sum of $3334 should be paid on October 1, 1890. This payment was not so made on that day. The acceptance by the vendors of the payment subsequently made, on or about October 12, was, of course, a waiver by them of their right to rescind and declare a forfeiture, but such waiver did not bind the sureties, who were relieved from liability by the failure of the vendees to perform the precedent act of payment at the time provided in the contract. Bank of Columbia v. Ilagner, 1 Pet. 455; Kelsey v. Crowther, 162 U. S. 404. The contention on the part of the plaintiffs in error that the alleged inability of the vendors to make a conveyance of the character called for by the contract relieved them from the duty of payment, is only true so far as they might choose to make such inability the ground of a right to rescind. They could not elect to abide by and enforce the contract, except Statement of the Case. upon performance or tender of payment on their part. Telfner v. Russ, 162 U. S. 171; Kelsey v. Crowther, 162 U. S. 404. These were the views that prevailed in the Supreme Court of the Territory, and its judgment is accordingly Affirmed. CAKE v. MOHUN. APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 123. Argued November 2, 1896. Decided November 30, 1896. After the death of the receiver, this case was properly revived in the name of his executrix. While, as a general rule, a receiver has no authority, as such, to continue and carry on the business of which he is appointed receiver, there is a discretion on the part of the court to permit this to be done when the interests of the parties seem to require it; and in such case his power to incur obligations for supplies and materials incidental to the business follows as a necessary incident to the office. A purchaser of property at a receiver's sale who, under order of court, in order to get possession of the property gives an undertaking, with surety, conditioned for the payment to the receiver of such amounts as should be found due him on account of expenditures or indebtedness as well as compensation, thereby becomes liable for such expenditures and indebtedness. In determining what allowances shall be made to a receiver and to his counsel this court gives great consideration to the concurring views of the auditor or master and the courts below; and it is not disposed to disturb the allowance in this case, although, if the question were an original one it might have fixed the receiver's compensation at a less amount. THIS was an appeal taken by Horace M. Cake and the administrators of William B. Moses, surety upon a certain undertaking of his to pay Francis B. Mohun, appellee's intestate, such sums as the court should find to be due the latter as receiver of the furniture, equipments and other personal property of the hotel known as La Normandie, in the city of Washington. The original bill was filed April 23, 1891, by the appellant Cake to foreclose a chattel mortgage or deed of trust executed Statement of the Case. by one Woodbury to William B. Moses and John C. Heald, to secure an indebtedness of $75,000 to Cake, and covering the furniture and other personal property in the hotel, a part of which property was also subject to a prior mortgage or deed of trust to secure the payment of the rent of the hotel. As it was manifestly for the interest of all parties that the hotel should not be closed, shortly after the bill was filed, and on May 5, 1891, Francis B. Mohun was appointed receiver, with instructions to take possession of the property, "and to carry on and manage the business of keeping said hotel in substantially the same manner in which it has heretofore been carried on," provided that he gave a bond in the sum of $15,000, conditioned for the faithful performance of his duties as such receiver. Upon his appointment, Mohun at once took possession of the hotel and personal property as receiver, and carried on the business until December 4, 1891, when he was directed to surrender the property to the appellant Cake, who became the purchaser under a decree of foreclosure, subject to the prior mortgage, as well as the unexpired term of the lease, which was sold by the marshal on an execution against Woodbury. Before taking possession, however, Cake was required to file an undertaking, with surety, conditioned for the prompt payment to the receiver of such amounts as should be found to be due him on account of his expenditures or indebtedness, as well as of his compensation; and also conditioned that a decree might be pronounced against such surety, as well as against the principal obligor, for the payment of such amounts. This undertaking was executed by Cake, with William B. Moses as surety, and was filed December 4, 1891. The undertaking having proved satisfactory to the court, possession was surrendered, and the cause referred, by order of the court, to an auditor, with directions to state the account of the receiver, and directing that all questions as to the payment of expenses incurred by him in the performance of his duties or as to the settlement of his unpaid obligations be reserved until the coming in of the auditor's report. Before the accounts were stated, Moses, the surety upon the undertaking, died intestate, Argument for Appellant. and the administrators of his estate were brought in and made parties to the cause. The auditor proceeded to take proof under the reference and stated an account, showing an aggregate sum to be paid to the receiver of $8332.53. This sum was made up as follows: Indebtedness of the receiver incurred in the conduct of the business.. Allowance for compensation for his services. Total.. $5038 74 2793 79 500 00 $8332 53 Exceptions were filed to this report by the appellant Cake, by the administrators of Moses as surety upon the undertaking, and by Mohun, the receiver. Upon the hearing of these exceptions, they were all overruled, the report ratified and approved, and a final decree passed for the payment to the receiver of the above amount. All parties appealed from this decree to the Court of Appeals, which affirmed the decree of the Supreme Court of the District, reducing the amount by a small credit of $7.59 to $8324.94. Cake v. Woodbury, 3 App. Cas. D. C. 60. Before this decree was entered, Mohun having died, his executrix, Martha V. Mohun, was substituted in his place. From this decree of the Court of Appeals, Cake and the administrators of Moses, his surety, appealed to this court. Mr. W. L. Cole for Moses, appellant. I. The receiver was an officer of the court, discharging duties imposed upon him by its orders. Upon his death his powers and duties could not devolve upon his personal representative. II. A receiver has no power to contract debts so as to make them a charge on the trust fund without express authority from the court. Lehigh Coal & Nav. Co. v. N. J. Central Railroad, 35 N J. Eq. 426; Brown v. Hazlehurst, 54 Maryland, 26; High on Receivers, §§ 175, 188; Addison v. Lewis, 75 Virginia, 701; Cowdrey v. Galveston, Houston &c. Railroad, Opinion of the Court. 1 Woods, 331; S. C. 93 U. S. 352; Tripp v. Boardman, 49 Iowa, 410; Davis v. Gray, 16 Wall. 203, 218. A party dealing with a receiver must take notice of his want of authority. Tripp v. Boardman, 49 Iowa, 410;· Kennedy v. St. Paul & Pacific Railroad, 5 Dillon, 519. He cannot make a contract that will bind his successor. Lehigh Coal & Navigation Co. v. Central Railroad, 35 N. J. Eq. 426; Cowdrey v. Railroad Co., 1 Woods, 331. Debts contracted without previous authority of the court are subordinate to the secured indebtedness. Union Trust Company v. Illinois Midland Company, 117 U. S. 434. III. After the appointment of the receiver the complainant in the bill was no more responsible for the conduct and management of the property than any other party to the suit. He was in no way liable for the acts of the receiver or the debts incurred by him. "A receiver is not appointed for the benefit of either of the parties, but of all concerned. Money or property in his hand is in custodia legis. He has only such power and authority as are given him by the court, and must not exceed the prescribed limits." Davis v. Gray, 16 Wall. 218. IV. The amount allowed the receiver for compensation is excessive. A discussion of the proper compensation to be allowed receivers will be found in the following cases: Farmers' Loan & Trust Co. v. Central Railroad, 2 McCrary, 181; Woven Tape Skirt Co., 85 N. Y. 506; Stretch v: Gowdey, 3 Tenn. Ch. 565. Mr. J. J. Darlington for appellee. MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court. 1. The first error assigned is to the allowance by the court below of a revival of the case in the name of the executrix of Francis B. Mohun. As the original decree in favor of Mohun was passed March 10, 1893, and as the order making the executrix a party was made by the Court of Appeals January |