Opinion of the Court.

conveyance came to the knowledge of the government was necessary in order that it might, before paying for the lands, secure a reconveyance of such part thereof as had been conveyed by Ryan to the village. That result being obtained, the government made the tender of the full amount it agreed to pay.

It is said, however, that the deed was delivered to the officers of the government only for the purpose of an examination of the title, and that they had no right to put it on record. This view has been pressed upon the theory that there was no valid contract upon the part of Ryan for the sale of the land, and that he had the right to withdraw his proposal to sell at the time he assumed to do so. If he had not been bound by contract to sell the lands, at the time he withdrew his offer, the placing of the deed upon record would have been unauthorized, and might not have passed the title as between the defendant and the United States. In the case supposed the government, upon being notified of the withdrawal of the offer to sell, would have been under a duty to return the deed. But we have seen that long before such attempted withdrawal there was a valid contract that bound the parties, the one to sell and the other to buy the lands at an agreed price. The attempt to withdraw the offer did not, therefore, impair the rights of the government. The deed was delivered in execution of that contract, with the intention that it should become presently operative when the Attorney General approved the title, and the government had the right to put it on record when the title was approved by that officer. The title was approved by him, and thereupon the government became bound to pay the price it agreed to pay for the lands. The delay in making the tender was due to Ryan's efforts to evade or defeat his contract.

There are one or two other matters that require to be examined. It is said that the defendant was not the owner of these lands at the time when, according to the views already. expressed, there arose a binding contract between him and the United States. But the title was in him prior to 1883, and was again in him on the 6th of December, 1886, as well

Opinion of the Court.

as on and after December 18, 1886, when he and his wife executed and acknowledged the deed of the United States. If he chose to bind himself by contract to sell land that he did not at the time own, but the title to which he subsequently acquired and conveyed by general warranty, he will not, in an action of ejectment based upon the title so conveyed, be heard to say that he had no title at the time he agreed to sell.

It is, also, said that the deed from Remegius Chartier, S. J., to James R. Ryan, for ten acres of these lands, and the deed from James R. Ryan and wife to Thomas Ryan were void, as to that ten acres, because the previous deed of James R. Ryan and wife to Chartier showed, upon its face, that said ten acres were the property of "The Fathers of the Society of Jesus for the purposes of education and other works in accordance with their constitution." In the view we take of this question it is unnecessary to determine the precise nature of the interest, if any, acquired by that society in the ten acres conveyed to Chartier, nor to determine whether the court below correctly interpreted the words "absolutely void" in section 5583 of the Statutes of Michigan, which declares that "when the trust shall be expressed in the instrument creating the estate, any sale, conveyance or other acts of the trustees, in contravention. of the trust, shall be absolutely void." The legal title was in Chartier, his successors and assigns, in trust for the purposes of education and other works in accordance with the constitution of his society, "with power to sell and dispose of the same to accomplish the same ends in case circumstances should require it." He thus had the power, under some circumstances, to sell and convey. He did sell and convey by a deed which did not disclose upon its face a violation of the trust, and his grantee, holding then the legal title to the entire premises in dispute, conveyed to the defendant, wha with his wife covenanted in their deed to the United States that they were seized of the premises in fee simple, free from all incumbrances whatever, and that they, and their heirs, executors and administrators, would warrant and defend the title against all lawful claims whatsoever. The title acquired

Opinion of the Court.

by him, after he contracted to sell to the United States, enured to the benefit of his grantee. He is estopped to dispute his grantee's right of possession, or to dispute, as between him and his grantee, the title he assumed to convey with general warranty. In Van Rensselaer v. Kearney, 11 How. 297, 325, it was said that the principle deducible from the authorities was "that whatever may be the form or nature of the conveyance used to pass real property, if the grantor sets forth on the face of the instrument, by way of recital or averment, that he is seized or possessed of a particular estate in the premises, and which estate the deed purports to convey; or, what is the same thing, if the seizin or possession of a particular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor and all persons in privity with him shall be estopped from ever afterwards denying that he was so seized and possessed at the time he made the conveyance. The estoppel works upon the estate, and binds an after-acuired title as between parties and privies." See, also, Bush v. Cooper, 18 How. 82, 85; Crews v. Burcham, 1 Black, 352, 357; Morre v. Crawford, 130 U. S. 122, 130; Jackson ex dem. Danforth v. Murray, 12 Johns. 201. And such is the established doctrine of the Supreme Court of Michigan, which said, in Smith v. Williams, 44 Michigan, 240, 242- an action of ejectment "hat when one assumes by his deed to convey a title, and bf any form of assurance obligates himself to protect the gran `ee in the enjoyment of that which the deed purports to give llim, he will not be suffered afterwards to acquire or assert a title and turn his grantee over to a suit upon his covenant for rec ress." See also Case v. Green, 53 Michigan, 615, 620.

The United States has established a good title and right as against the defendant, and that is sufficient to entitle it to judgment in this ac ion of ejectment.

These considerations require an affirmance of the judgment below and it is so ordered.

Syllabus.

KNEELAND v. AMERICAN LOAN AND TRUST
COMPANY.

KNEELAND v. BALLOU.

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA.

Nos. 252, 1537. Argued April 3, 7, 1890.- Decided May 19, 1890.

A party bidding at a foreclosure sale of a railroad makes himself thereby a party to the proceedings, and subject to the jurisdiction of the court for all orders necessary to compel the perfecting of his purchase; and with a right to be heard on all questions thereafter arising, affecting his bid, which are not foreclosed by the terms of the decree of sale, or are expressly reserved to him by such decree.

Where not concluded by the terms of a decree of foreclosure of a railroad, any subsequent rulings which determine in what securities, of diverse value, the purchaser's bid shall be made good, are matters affecting his interests, and in which he has a right to be heard in the trial court, and by appeal in the appellate court.

The appointment of a receiver of a railroad vests in the court no absolute control of the property, and no general authority to displace vested contract liens, and when a court makes such an appointment it has no right to make the receivership conditional on the payment of any unsecured claims except the few which by the rulings of this court have been declared to have an equitable priority; it being the exception and not the rule that the contract priority of liens can be displaced.

A court which appoints a receiver acquires, by virtue of that appointment, certain rights and assumes certain obligations, and the expenses which the court creates in discharge of those obligations are necessarily burdens on the property taken possession of, and this, irrespective of the question who may be the ultimate owner, or who may have the preferred lien, or who may invoke the receivership.

When a court appoints a receiver of railroad property it may, in the administration, contract debts necessary for operating the road, or for labor, supplies or rentals, and make them a prior lien on the property. When, at the instance of a general creditor, a receiver of a railroad and its rolling stock is appointed, and among the latter there is rolling stock leased to the company with a right of purchase, and, there being a deficit in the running of the road by the receiver, the rental is not paid, and the lessor takes possession of his rolling stock, his claim for rent is not entitled to priority over mortgage creditors on the foreclosure and sale of the road under the mortgage.

When the holder of a first lien upon the realty alone of a railroad company

Opinion of the Court.

asks a court of chancery to take possession not only of the realty but also of personal property used for the benefit of the realty, that personalty thus taken possession of and operated for the benefit of the realty should be first paid in preference to the claim secured by the realty. Where, on the application of the trustee of a railroad mortgage, a receiver is appointed and takes possession of the road and of its rolling stock, and among the latter is rolling stock which the company was operating under lease, and the receiver continues to operate it, its rental at the contract price, (and not according to its actual use,) if not paid from earnings will be a charge upon the proceeds of the sale under the foreclosure of the mortgage prior to the mortgage debt.

IN EQUITY.

The case is stated in the opinion.

Mr. John M. Butler for appellant.

Mr. James L. High, for Paul, trustee, and the United States Rolling Stock Company, appellees.

Mr. Bluford Wilson for R. S. Grant, The American Loan and Trust Company, and the Grant Locomotive Works, appellees.

Mr. Henry D. Hyde (with whom was Mr. Samuel Williston on the brief) for the American Loan and Trust Company and E. B. Phillips, trustee, appellees.

Mr. Robert G. Ingersoll (with whom was Mr. Clarence Brown on the brief) for appellant.

MR. JUSTICE BREWER delivered the opinion of the court.

These cases were argued and are considered together, the questions involved being similar, and growing out of the same foreclosure suits. In a general way it may be stated that they arise between a purchaser at foreclosure sales of certain railroad property and intervening creditors. The initial question is as to the right of appellant, the purchaser, to his appeal. It is urged that a purchaser at a sale under a decree has no right to appeal from its terms. He takes under it. His purchase is a voluntary act, and, coming in voluntarily to take under a decree, he may not challenge that under which he takes. The contention of appellant is that his attitude is not thus limited; that his appeal is not from the decree of sale