CUTTING v. TAVARES, O. & A. R. CO. (FLORIDA CENT. & P. R. CO. et al., Interveners), 61 F. 150

PARDEE, Circuit Judge (after stating the facts). A motion was made to dismiss the appeals in this case on the ground that the certificate of the cleric of the circuit court to the transcript of record is insufficient The certificate of" the cleric, appended to the transcript, is: “That the foregoing papers, numbered from 1 to 215, both inclusive, is a true, full, and complete transcript of so much of the said record, papers, exhibits, and proceedings in the said cause of W. Bayard Cutting, as trustee, v.

The Tavares, Orlando and Atlantic Railroad Company as now appears,, and is of file and of record in my office; said transcript being true and correct copies of the originals of the several papers, proceedings, depositions, files, and orders therein contained, as they now are of file and of record in my office.” The certificate does not comply with the requirements of rule 14 of this court (47 Fed. vii.), and as the record itself is in a very unsatisfactory condition in regard, to showing all the proceedings that were had in the cirenii court in the case in hand, and necessary for our consideration, we would be disposed to dismiss the appeals, were it not for the fact that the record shows that the records in said cause were destroyed by lire on May 19, 1891, and what is now presented as so much of the said record, papers, exhibits, and proceedings is necessarily all tin; record prior to May 19, 1891, which has been re-established, and such proceedings as have been since had .in the cause, and we are unable to lay upon any one of the appellants in this cause the fault of not fully re-establishing the record.

The decree of foreclosure rendered December 24, 1890, was a final decree, which settled between the parties the rights therein adjudicated.

As by that decree, in pursuance of the terms of the mortgage, it was provided that, after paying out of the proceeds of the sale the court costs and expenses, including compensation to the complainant and his counsel, and the obligations incurred by the receiver under orders of the court, “the residue of the purchase money should be applied first to the payment in full, if such residue be sufficient, or, if not, to the payment, pro rata, of all the defaulted coupons belonging to the said bonds, and the interest hereinbefore adjudged to be due and payable, together with interest on the amount thereof from the date of this decree to the date of the payment by the master, at the rate of 8 per cent, per annum, and the interest hereinbefore adjudged on the principal of tin; said bonds, and accrued since dune 4, 3888, and interest thereon from the date of this decree to the time; of payment by the master, at the rate of 8 per cent.,” it follows that the decree of distribution appealed from in this case was erroneous in so far as it provided for a pro rata payment upon the mortgage bonds before paying the interest coupons and interest due.

The decree of confirmation rendered on the 14th of April, 1891, was a final decree, settling the rights and obligations of the purchaser so far as they were therein adjudicated.

As by that decree a credit was allowed to the purchaser for the sum of $10,373.46, on account of the receipt of the Florida Central & Peninsular Railroad Company as the successor to the right of the receiver of the Florida Railway & Navigation Company on a traffic balance, it follows that the decree of distribution appealed from, in so far as it rejected a credit to the purchaser of said sum of 810,373.46 traffic balance paid, was erroneous.

The decree of the 23d day of February, 1892, declared that 19 bonds of the defendant company, filed in the cause by the Florida Central & Peninsular Railroad Company, are not legally outstanding in the hands of the said company, and not entitled to share in the proceeds of the sale of the property, and that the same should he canceled, was not and never became a final decree, because, at the same term, on petition of the Florida.

Central & Peninsular Railroad Company, the court allowed a petition for rehearing to be filed, and referred the same to a master for report, and adjourned the term of court, leaving the matter open. Goddard v. Ordway, 101 U. S. 748; Smelting Co. v. Billings, 350 U. S. 35, 14 Sup. Ct. 4.

The evidence shows that the eight bonds pledged by the defendant railroad company to the Rogers Locomotive Works, as collateral security to a car trust, were never lawfully acquired by the Florida Central & Peninsular Railroad Company, but remained from the beginning the property of the defendant railroad company, and, as such, were not legally outstanding, and entitled to share in the distribution of the proceeds of sale. In this respect we find no error in the decree appealed from.

The Florida Central & Peninsular Railroad Company assigns as error the allowances made to the master as commissions on the sale, and as compensation for other services.

As, on the face of the record, the allowances complained of appear to be excessive, particularly in view of the character of the work as exhibited by the transcript, and as the case must necessarily be remanded and another reference ordered, and largely because there is no sufficient master’s report in the record, we are of the opinion that the parties who are to be required to pay the apparently excessive allowances should be allowed the right to regularly contest the same.

The decree appealed from requires the purchaser to pay into court the sum of $1,843.55, being the moneys alleged to have been turned over by the receiver to said purchaser, the said deceiver having been paid his allowance out of the sale of the property. There is no evidence in the record tending to show whether this item is properly chargeable to the purchaser or not. The record shows that in July, 1891, the receiver turned over to the purchaser the sum of $1,843.55, cash.

Whether this was for earnings of the road subsequent to the sale, or for earnings prior thereto, does not appear, and we are unable to determine whether or not the purchaser should account for such sum. The Florida Central & Peninsular Railroad Company further assigns as error that numerous small claims allowed to be due by the defendant the Tavares, Orlando & Atlantic Railroad Company, for supplies furnished prior to the appointment of the receiver under the bill for foreclosure, were allowed by the court, and ordered to be paid out of the proceeds of the corpus of the property.

As the court in appointing the receiver made no provision for the payment of such claims, and as there is no evidence in the record tending to show that current earnings, either, before or after the receiver was appointed, were diverted to paying unearned interest, or, in fact, any interest, upon the bonded debt, we are unable to sanction the order authorizing the payment of said claims from the proceeds of the sale of the property. See Fosdick v. Schall, 99 U. S. 235. It is also contended that the purchaser should be allowed a credit for the amount of the taxes due on the property for the year 1891.

Whether the taxes for that year on the property purchased by the Florida Central & Peninsular Railroad Company should be paid by the purchaser, or out of the funds derived from the sale, depends upon whether or not the said taxes were a lien upon the property at the time of the sale. The statute of the state of Florida, in relation to this matter (Sess.

Act 1887, Act Eo. 1, § 23), provides that: “The assistant assessor shall begin the assessment of property on the 1st of January and complete the same as early as possible, and he shall return his list of assessments, so made out, to the county assessor immediately upon the completion thereof, and not later ihan the 1st of May. and the two shall then revise such list at such staled time or times before the 1st day of June as the county assessor may designate, and make such changes as may he agreed upon between them as to descriptions or values of property.”

Section 39 oí the same act provides “that all taxes shall he due and payable on and alter the 1st Monday in October of each and every year;” and

section 42 provides “that: an assessment of taxes shall be a lien upon the property assessed from the date oí the assessment.” The record in this cause does not show facts sufficient to enable ns to determine when, in and for the year 1891, the property of the Tavares, Orlando & Atlantic Railroad Company was assessed, nor the time the lieu for said taxes attached. The sale of the property was made on the 2d day of February, 1891, and was confirmed by the court on the 14th. of April, 1891. Under the law, the assessment may have been made after the sale of the property, and even after the decree of confirma lion.

It is contended on the part of Lewis et ah, appellants, that Ihe court below erred in overruling the exceptions of Lewis and Sinclair to the master’s report, refusing to charge the purchaser, (lie Florida Central & Peninsular Railroad Company, with interest on the balance of the purchase price remaining unpaid. The record shows that on the 1st of March, 1892, on the petition of William C.

Lewis and Adams & Co., the court ordered that the Florida Central & Peninsular Railroad Company lie required and ordered to pay into the registry of the court, on or before the 10th day of March, 1892, the sum of §150,000, or show cause on or before that date why it should not do so. The decree of the court confirming the sale rendered on the 14th day of April, 1891, giving credit to the purchaser for the amounts of cash, and credits equal to cash, paid in by the master on account of the purchase, shows no such sum as §150,000 to he due from the purchaser.

The case made by the record does not appear to he one in which the purchaser has been so put in default for nonpayment of the purchase price that interest should he exacted, even if such remedy is available against the purchase under the terms of the decree of confirmation. We have considered all the questions presented by the assignments of error on the appeals in this case.

Our conclusion is, and this court orders and decrees, that the decrees of the circuit court rendered on June 7,1893, June 15, 1893, August 16, 1893, and November 8, 1893, lie, and they .are, reversed, and this cause is remanded, with instructions to refer the same to a master to report (1) the amount due and unpaid by the Florida Central & Peninsular Railroad Company on account of the purchase of the Tavares, Orlando & Atlantic Railroad properties, in accordance with the decree of April 14, 1891, and consistent with (he views herein expressed, and as equity may require; (2) a

schedule of distribution of the proceeds of sale in accordance with the provisions of the decree of foreclosure and sale rendered December 24, 1890, consistent with the views herein expressed, and as equity may require; (3) to take evidence and report on the claim of Philip Walter, Esq., for compensation for services, rendered in the progress of the cause as special master and master commissioner. The costs of the appeal and of this court are ordered paid out of the fund in the cause.