Statement of the Case. railroad and property, appurtenances and franchises of what was formerly known as the Lexington, Lake and Gulf Railroad Company, extending southwardly from the Missouri River, at Lexington, Missouri, by the way of Pleasant Hill, to a point south of Butler;" such conveyance to include all the rights and interest acquired by Newman and Waddell under the trust deed to Chapman, of January 16, 1872, and the sale made under it on the 20th of February, 1877. 2. That said receiver be substituted to all claims of every kind held by Newman and Waddell against the Lexington, Lake and Gulf Railroad Company. This agreement contained the following provisions: "And in consideration of the premises, said party of the first part, as receiver, agrees to pay said Newman, out of the moneys coming into his hands from that part of said railroad hereinbefore mentioned, or from the sale of receiver's certificates lately authorized by said court to be issued by said receiver, or from any earnings from that portion of said road, or arising from the sale thereof under the decree of said court, and within nine months from the eighteenth day of December, 1879, the sum of seventeen thousand seven hundred and fifty dollars, it being recognized and admitted in this settlement that the claim of said Newman to the above amount is a first and prior lien upon said portion of said railroad, paramount to the mortgage to said Farmers' Loan and Trust Company; but this agreement is not to bind the receiver in reference to any other property or money coming into his hands, except from or pertaining to that part of the property aforesaid acquired from the Lexington, Lake and Gulf Railroad Company. * * * * * "And it is further mutually agreed by and between the parties hereto that time is of the essence of this contract, and that in case said second party shall fail to comply on his part with the stipulations hereof said first party may have the right to have the same enforced specifically by the court in which said cause is pending or, at his option, declare this agreement absolutely null and void; and if said first party shall fail within said nine months from December 18th, 1879, to pay said $17,750.00 Statement of the Case. said second party may apply to said court for the enforcement thereof, or, at his option, he may abrogate or abandon the same absolutely, and his rights in that event shall be the same as if this contract had not been made. "And it is distinctly understood that this agreement is made by said receiver under an order of said court, and refers to no other than said property before mentioned, and is to be paid out of no funds except such as arise from said portion of said road, and is to constitute no personal or individual claim against said Elijah Smith. "It is further understood and agreed that when said quitclaim deed shall be delivered in escrow to said Noble that the note mentioned and described in the said trust deed to Moses Chapman, under which said Newman's claim arises, shall be delivered to said Noble also in escrow, and said trust deed shall also be delivered to him if in possession of parties, if not, as soon as practicable; and on the compliance of the receiver with his part of this agreement said note and said trust deed shall be delivered to him, with the said quitclaim deed, as muniments of his title and as vouchers, said note to be cancelled upon payment of said $17,750.00." So far as the record discloses, all the stipulations in this agreement, relating to Newman and Waddell, were complied with by them. The required quitclaim deed was executed, and the same, together with said notes and trust deed, were placed in the hands of Noble, in escrow, and are now held by him in that way. On the 30th of November, 1880, the Linneus Branch road, including said property, franchises, rights, and premises of the Lexington, Lake and Gulf Railroad Company was sold, in gross, by a special master in the foreclosure suit, Elijah Smith, as trustee for the bondholders, becoming the purchaser at the price of one million dollars, paid entirely in mortgage bonds held by those whom he represented. The present suit was commenced by petition of intervention filed in the foreclosure suit, March 7, 1881, by Newman, as trustee for himself and Waddell. After referring to the efforts of Smith to have his purchase confirmed, he prays that Statement of the Case. said contract and agreement be enforced, and that before any order is made, confirming and approving the sale, the receiver be required to pay out of the proceeds of sale the sum of $17,750, with interest at the rate of six per cent per annum, since September 18, 1880, and for such other and further relief as may be just and proper. To this petition of intervention the complainants in the foreclosure suit filed an answer, and subsequently, July 5, 1881, obtained an order confirming the sales, approving the deed to Smith as trustee, which the master had previously submitted with his report of sale, and directing that the property be placed in his possession. This order, however, contained the following provision: "But the said deed of conveyance and the delivery of said property to said grantee shall not be taken to affect any claim, right, interest in or lien upon or to said property sold and conveyed by said master's deed now pending in this court, or in any state court by leave of this court, but that said claim, right, interest, or lien are hereby reserved, subject to further order and decrees of this court, and the power to make further orders, decrees, and directions in reference to said property in this cause is hereby expressly reserved by the court.” On the 9th of December, 1881, an amended answer was filed by the Farmers' Loan and Trust Company, and Smith, as receiver. The cause having been heard, a final decree was rendered whereby it was ordered and adjudged that "there is justly due the intervenor named the sum of seventeen thousand seven hundred and fifty dollars, with interest thereon from the 30th day of November, A.D. 1880, at the rate of six per centum per annum until paid, and that said claim to the amount aforesaid was authorized by this court to be incurred by its receiver in this cause and was by him so incurred, and was to have been provided for and paid out of the proceeds of sale of that railroad and property described in the mortgage made to complainants by the defendant, The Burlington and Southwestern Railway Company, and which was sold on the 30th day of November, 1880, by order of this court, and the sale whereof was conditionally confirmed on July 5, 1881; that said claim not having been paid or provided for, said sale of said railroad Opinion of the Court. and property sold as aforesaid, as well as the confirmation thereof, is hereby set aside and for naught held, and said receiver of this court in this cause is hereby ordered to take exclusive possession of said railroad and property, with any additions or appurtenances thereto absolutely necessary to regain his original possession of all said property in all things the same and with all the powers in him as said receiver heretofore vested, at and upon the expiration of ninety (90) days from the date of this decree, unless within said last named period of ninety days the claim of said intervenor in the sum herein before determined be paid with interest and the costs of this proceeding to said H. L. Newman, trustee as aforesaid, by said Elijah Smith, as trustee for bondholders, purchaser at said sale, and if said claim be paid as aforesaid, then said sale shall stand and said order of confirmation be final as to said demand." From that decree the present appeal is prosecuted. Mr. P. Henry Smyth for appellants. Mr. Tilton Davis and Mr. John W. Noble for appellee. Mr. John C. Orrick was with them on the brief. MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court. From this history of the proceedings in the court below it satisfactorily appears : 1. That Newman, as trustee, had a lien upon the road south of Lexington - the same leased by the Lexington, Lake and Gulf Railway Company to the Burlington and Southwestern Railway Company for the benefit of the Linneus Branch of the latter corporation — prior and paramount to that created by the mortgage for $1,600,000. 2. That after the court passed the decree of foreclosure of May 19, 1876, the parties deemed it important to their interests that the road south of Lexington be completed for traffic before any sale took place under that decree, and to that end the receiver, with their knowledge and consent, obtained leave VOL. CXXVII-42 Opinion of the Court. to borrow money upon certificates, which should be a lien, prior to all others, upon that portion of the Burlington and South western Railway acquired for its Linneus Branch under the contract of lease with the Lexington, Lake and Gulf Railroad Company of February, 1872, but upon no other property or funds in the possession of the receiver. 3. That by the same order, the receiver was directed to settle and adjust, by payment or otherwise, any outstanding claims against the lessor company which might seem to be prior in right to the claims of the lessee company under said contract of lease, and to purchase in any outstanding or adverse lien or title to any portion or all of the property, upon such terms as he deemed best for the interests of the parties concerned, "any rights or title so acquired to be conveyed to him as receiver, for the benefit of the parties in interest herein;” the parties here referred to being the holders of bonds under the mortgage for $1,600,000 and the trustees in that mortgage. 4. That, under the authority of this order, the receiver made, with Newman as trustee, the agreement of March 12, 1880, whereby the latter agreed to convey to the former, as receiver, all his right, title and interest in the leased premises, including any rights acquired under Chapman's sale in virtue of the trust deed of January 16, 1872, and whereby, also, the receiver agreed to pay to Newman the sum of $17,750 within nine months from December 18, 1879, such payment to be made "out of any money coming into his hands from that part of said railroad herein before mentioned or from the sale of receiver's certificates [then] lately authorized by said court to be issued by said receiver, or from earnings from that portion of said road, or arising from the sale thereof under the decree of said court;" such agreement "not to bind the receiver in reference to any other property or money coming into his hands except from or pertaining to that part of the property aforesaid acquired from the Lexington, Lake and Gulf Railroad Company." It is not disputed that the order authorizing the receiver to acquire by purchase for the benefit of the parties interested in |