Gallagher v. Gingrich

Given, J. — The proceeds arising from the sale of the partnership 'property are insufficient to pay the several liens thereon and costs and expenses of the receivership. Appellant, holding the junior claim, and being the purchaser of the property, insists that the receiver took the property subject to all liens existing against it at the time; that the liens are entitled to preference over the costs and expenses of the receivership'; and that, if the assets are not ¡sufficient to pay both, the receiver must look to the parties who caused Ms appointment for his compensation and expenses. Hanna v. Trust Co., 16 C. C. A. 586 (70 Fed. 2), is relied upon to support this contention. The question of the expenses of the receiver incurred in'winding up the business was not involved in that case. The contention was as ' to whether the receiver should be permitted to borrow 239 money for the purpose of continuing the business and carrying out the contracts of the insolvent debtor. In Radford v. Folsom, 55 Iowa, 276, it is said: “It is believed that the authorities uniformly hold that when no question is made as to the legality and propriety of the appointment of the receiver, and he has closed up the business in pursuance of his appointment, his com: pensation should be paid from the funds in his hands.” See, also, Jaffray v. Raab, 72 Iowa, 335; St. Paul Title, Insurance & Trust Co. v. Diagonal Coal Co., 95 Iowa, 551. No question was made as to the legality and propriety of the appointment of this receiver; neither was it questioned that the items allowed were just. The contention is that their payment must be deferred to the payment of existing liens, but such is not tbe law. The fact that the appointment of the receiver was made without prejudice to any liens of the appellant acquired by its attachment did not deprive the court of the right to order the expenses of the receivership to be first paid out of the assets. The judgment is affirmed. Ladd, J., takes no part.