Miller, J.,
delivered tbe opinion of tbe Court.
It appears from the record in this case, that Henry J. MeNamee applied for the benefit of the insolvent laws in May, 1859; that Daniel 'Wineow was appointed trustee for the benefit of his creditors, and the appellants became sureties on the trustee’s bond; that the property consisting chiefly of real estate, was sold by the trustee under order of the Court, in October, 1859, for @3,894.00, the terms of sale being one-third cash, one-third in six and one-third in twelve months, the credit payments to be secured by the bonds of the purchaser with sureties to be approved by the trustee, and that the insolvent himself became the purchaser. In his report the trustee stated the purchaser had complied with the terms of sale and it was finally ratified in January, 1860. At the instance of creditors two audits were stated at different periods, distributing the cash and first credit payments, including interest upon the latter down to the time it was due, to the claims of the creditors according to priority paying some in full, others in part and leaving unpaid a large number of junior claims. These audits wére finally ratified in February and November, 1860, and most of tbe creditors to whom distribution was thus 'made brought suits on the trustee’s bond for the several sums so audited to them, and recovered judgments which were paid by Mr. Gordon, one of the sureties. A third audit was also stated distributing the last credit payment, still leaving a large amount of claims unpaid; but before this audit was ratified the Court on petition of the appellants filed in January, 1861, stating the purchaser had paid no part of the purchase money, except §710, and that Wmeow was insolvent, passed an order, with Wineow’s consent, removing him and appointing Mr. Gordon, trustee, in his place. The new trustee received from Wineow §500 out of the §710, of purchase money paid him, and then under orders [244] of the Court re-sold the property in March, 1863, for $4,163 cash, a sum less by a small amount than that ascertained by a ratified account to be due from the first purchaser on account of his purchase. To the final audit distributing the ■funds in Mr. Gordon’s hands, exceptions were filed by the appellants and from the order ratifying it they have appealed.
We do not agree with the Special Judge who passed the order appealed from in his interpretation of the effect of the orders of Judge Weisel directing a re-sale. The order' of February, 1861, directed all the real estate to be re-sold for the payment of the purchase money due by McNamee, and that such sale should be at his risk. That of November, 1862, directs the sale made by Wineow to be “set aside,” except as to lots E and F, but also directs the trustee to resell for the payment of the purchase money due by McNamee and that said sale shall be at his risk. Again in the order of February, 1863, the sales of lots E and F are annulled and set aside, but the trustee is directed to re-sell them at the risk of McNamee for the payment of the purchase money due thereon by him. That it was not the intention of the Judge, who passed these orders, to absolutely vacate and annul the sales made by Wineow, so as to release the purchaser from liability, is apparent not only from his opinion of June, 1864, accompanying' the order affirming the re-sale of the two lots in which he treats them simply as orders of re-sale at the purchaser’s risk, but also from his order of June, 1863, ratifying the account showing the amount due by McNamee, as purchaser, in which it is said he will thereafter be allowed a credit for the net amount of the proceeds of sale made or to be made by the new trustee under the several orders of re-sale heretofore passed. Notwithstanding the inadvertent use, of the terms “ set aside ” and “ annul ” in two of these orders, we are of opinion their true meaning was simply that of orders of re-sale at the purchaser’s risk, and that they cannot have the effect to vacate and annul all that [245] bad been done in the ease, so as to require the second sale to be treated as a sale de novo. Nor is there any reason for so construing them. It might have been very important to the creditors that the purchaser should have been held to his contract, for though he was an insolvent applicant, yet he had been discharged under his application and for this subsequent contract of purchase all his future earnings and acquisitions would have been responsible.
The question then arises how are the funds in the hands of Mr. Gordon, the trustee, to be distributed?
First. There is no doubt the clerk’s costs in the case, auditor’s fees, expenses of both the original and the re-sale, and' commissions to the trustee, must be first paid. In this respect the final audit is correct. Full commissions were allowed Mr. Gordon on the entire amount of the proceeds of the re-sale, and the exception that he was not also allowed commissions on the $500 received from Wineow, the former trustee, was properly overruled. The Court was also clearly right in refusing to allow any commissions to Wineow. His conduct in the case was such as to debar him from compensation in any form.
Second. It is conceded the sums allowed to creditors in the two ratified audits distributing the cash and first credit payments of the first sale, must be next satisfied and such of them as were paid by Mr. Gordon audited to him. This has been done substantially in the audit under review. The objection that these sums are not distributed to him or for bis use is to mere form. They are audited to the creditors but arc stated to have been paid by him, and this statement is a full protection against any claim by the creditors therefor. The claims audited to Wiilison and to Hoye, use of Semmes, having been paid in whole or in part by Gordon, should have been audited to liim or for his use or stated to have been paid by him. But the record shows he has in his possession the receipt of Wil-lison in full, and of Semmes for the amount paid to him, and the mere omission under such, circumstances to enter [246] these claims in tbe audit to bis use, when it is plainly seen no injury will result therefrom, furnishes no ground for a reversal.
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Miller, J.,
delivered tbe opinion of tbe Court.
It appears from the record in this case, that Henry J. MeNamee applied for the benefit of the insolvent laws in May, 1859; that Daniel 'Wineow was appointed trustee for the benefit of his creditors, and the appellants became sureties on the trustee’s bond; that the property consisting chiefly of real estate, was sold by the trustee under order of the Court, in October, 1859, for @3,894.00, the terms of sale being one-third cash, one-third in six and one-third in twelve months, the credit payments to be secured by the bonds of the purchaser with sureties to be approved by the trustee, and that the insolvent himself became the purchaser. In his report the trustee stated the purchaser had complied with the terms of sale and it was finally ratified in January, 1860. At the instance of creditors two audits were stated at different periods, distributing the cash and first credit payments, including interest upon the latter down to the time it was due, to the claims of the creditors according to priority paying some in full, others in part and leaving unpaid a large number of junior claims. These audits wére finally ratified in February and November, 1860, and most of tbe creditors to whom distribution was thus 'made brought suits on the trustee’s bond for the several sums so audited to them, and recovered judgments which were paid by Mr. Gordon, one of the sureties. A third audit was also stated distributing the last credit payment, still leaving a large amount of claims unpaid; but before this audit was ratified the Court on petition of the appellants filed in January, 1861, stating the purchaser had paid no part of the purchase money, except §710, and that Wmeow was insolvent, passed an order, with Wineow’s consent, removing him and appointing Mr. Gordon, trustee, in his place. The new trustee received from Wineow §500 out of the §710, of purchase money paid him, and then under orders [244] of the Court re-sold the property in March, 1863, for $4,163 cash, a sum less by a small amount than that ascertained by a ratified account to be due from the first purchaser on account of his purchase. To the final audit distributing the ■funds in Mr. Gordon’s hands, exceptions were filed by the appellants and from the order ratifying it they have appealed.
We do not agree with the Special Judge who passed the order appealed from in his interpretation of the effect of the orders of Judge Weisel directing a re-sale. The order' of February, 1861, directed all the real estate to be re-sold for the payment of the purchase money due by McNamee, and that such sale should be at his risk. That of November, 1862, directs the sale made by Wineow to be “set aside,” except as to lots E and F, but also directs the trustee to resell for the payment of the purchase money due by McNamee and that said sale shall be at his risk. Again in the order of February, 1863, the sales of lots E and F are annulled and set aside, but the trustee is directed to re-sell them at the risk of McNamee for the payment of the purchase money due thereon by him. That it was not the intention of the Judge, who passed these orders, to absolutely vacate and annul the sales made by Wineow, so as to release the purchaser from liability, is apparent not only from his opinion of June, 1864, accompanying' the order affirming the re-sale of the two lots in which he treats them simply as orders of re-sale at the purchaser’s risk, but also from his order of June, 1863, ratifying the account showing the amount due by McNamee, as purchaser, in which it is said he will thereafter be allowed a credit for the net amount of the proceeds of sale made or to be made by the new trustee under the several orders of re-sale heretofore passed. Notwithstanding the inadvertent use, of the terms “ set aside ” and “ annul ” in two of these orders, we are of opinion their true meaning was simply that of orders of re-sale at the purchaser’s risk, and that they cannot have the effect to vacate and annul all that [245] bad been done in the ease, so as to require the second sale to be treated as a sale de novo. Nor is there any reason for so construing them. It might have been very important to the creditors that the purchaser should have been held to his contract, for though he was an insolvent applicant, yet he had been discharged under his application and for this subsequent contract of purchase all his future earnings and acquisitions would have been responsible.
The question then arises how are the funds in the hands of Mr. Gordon, the trustee, to be distributed?
First. There is no doubt the clerk’s costs in the case, auditor’s fees, expenses of both the original and the re-sale, and' commissions to the trustee, must be first paid. In this respect the final audit is correct. Full commissions were allowed Mr. Gordon on the entire amount of the proceeds of the re-sale, and the exception that he was not also allowed commissions on the $500 received from Wineow, the former trustee, was properly overruled. The Court was also clearly right in refusing to allow any commissions to Wineow. His conduct in the case was such as to debar him from compensation in any form.
Second. It is conceded the sums allowed to creditors in the two ratified audits distributing the cash and first credit payments of the first sale, must be next satisfied and such of them as were paid by Mr. Gordon audited to him. This has been done substantially in the audit under review. The objection that these sums are not distributed to him or for bis use is to mere form. They are audited to the creditors but arc stated to have been paid by him, and this statement is a full protection against any claim by the creditors therefor. The claims audited to Wiilison and to Hoye, use of Semmes, having been paid in whole or in part by Gordon, should have been audited to liim or for his use or stated to have been paid by him. But the record shows he has in his possession the receipt of Wil-lison in full, and of Semmes for the amount paid to him, and the mere omission under such, circumstances to enter [246] these claims in tbe audit to bis use, when it is plainly seen no injury will result therefrom, furnishes no ground for a reversal.
Third. As to the residue. The appellants insist that this being a re-sale to replace the purchase money due under the first sale, the creditors are entitled out of the residue only to the amount due by the first purchaser on the second credit payment of the sale to him, as ascertained in the third audit, the two first having disposed of the cash and first credit payments. Ye cannot assent to this position. The third audit was never ratified and tire creditors, therefore, had no remedy on the bond of the first trustee for the sums so audited to them. The purchaser had given no security for the purchase money and their only recourse for payment was a re-sale of the property at his risk, and holding him responsible for any deficiency. Having been thus delayed in the receipt of their claims, the true amount to which they are justly and equitably entitled out of the proceeds of the re-sále, is the amount of the second credit instalment under the original sale, with interest thereon from the date of the first to that of the second sale. The Amount thus ascertained belongs to the creditors and cannot be diminished on account of any claim or equity set up by the appellants or either of them founded upon the fact of their having paid, as sureties on the trustee’s bond, the amounts distributed by the first and second audits. No doctrine of subrogation or other principle of equity will enable them to interfere with the claims of these creditors to this extent) and as it appears from the audit before us that the amount thereby distributed to creditors, exclusive of the sums distributed in the first and second audits, is less than the amount of the second credit payment with interest for the period above stated, it becomes unnecessary to consider what equities the appellants might have, if there had been a surplus over this amount. As the case stands they have certainly received no injury by the audit to which they have excepted,
[247] (Decided 9th March, 1869.)
These views dispose of all the exceptions affecting the interests or rights of the appellants. There may be errors, though we have not examined tlxe case with that view, in the calculation of interest on the claims of some of the creditors or otherwise affecting their rights inter sese, but as none of them have complained we cannot redress their grievances or adjust their rights on this appeal. We have carefully considered the record with a view of determining whether the appellants have sustained injury and finding no error of which they can complain we must affirm the order appealed from.
Order affirmed.