ANDERSON v. CONDICT et al., 94 F. 716

WOODS, Circuit Judge (concurring in the overruling of the petition for a i«hearing). The twenly-eighlh paragraph of the decree contains the clause, “and also subject to all current liabilities of the receiver incurred.” That is an independent and absolute provision, unqualified b,v anything that, precedes or follows it.

What precedes has reference to such claims and allowances as shall be adjudged prior in lien or superior in equity to the receiver’s certificates and the mortgage foreclosed, and what follows to obligations assumed or imposed by order of the court which should bo adjudged superior in equity to the mortgage. The thirty-first paragraph has no reference to current liabilities incurred by the receiver. but only to claims superior to any of the liens or claims provided to be paid from I he proceeds of the sale.

In other words, the sale was (o be subject unconditionally to the current liabilities-of the receiver, without question of essential priority, hut, in respect to other claims, “subject to the payment only of the amount allowed upon such of said claims so filed within said 90 days as shall be found entitled to priority over the lien of the trust deed heroin foreclosed and which the court may further find should be paid by said purchaser or purchasers.” Whether the court erred in preferring current liabilities to the receiver’s certificates is a question which does not arise upon this record, and which in no event could be raised by a purchaser under the decree.