deed from Crane to him? If the order dis- | solving the injunction was not affected by the appeal with supersedeas, and if a stranger to the suit had purchased the property at the sale by Tyler pending the Keyser Case here, a different question would have been presented. But all difficulty on that ground is avoided by the fact that the purchase was in fact by the agent and representative of Jenks and for his benefit. As between the plaintiff and Jenks, the title to the property was bound from the filing of the bill. By the pleadings in the cause the parties had joined issue as to the validity of the deed to Tyler, trustee, and as to the right of Jenks to have the property sold under that deed. Jenks and Tyler, being parties to the cause, could not avoid the [165] final determination of that issue in this court by any direction from the former to Tyler to sell the property under the deed of trust, and by becoming the purchaser through an agent. We have made these observations for the purpose of showing that the mere dissolution of the injunction by the general term and the subsequent sale at public auction under the trust deed by Tyler-whether acting upon his own motion or by direction of Jenks is immaterial-do not preclude an inquiry in the present suit as to the validity of the sale made by Tyler in his capacity as trustee. pending the Keyser Cause here upon appeal by Mrs. Hitz with supersedeas. This question will now be examined. Tyler, as trustee under the Crane deed, advertised and sold the property while in his possession as receiver appointed by the court. This was done by him after the removal of the cause to this court, and with out any special order of court allowing him to take that course. As receiver he held the property for the court and for the benefit of all the parties asserting an interest in it, including Mrs. Hitz. While in his hands as receiver the property was in the custody of the law. As a party to the cause he, as well as Jenks, whom he represented as trustee, knew that Mrs. Hitz by her cross bill sought to have the deed under which he proceeded set aside as void. What he did as trustee tended to defeat the rendition here of any effective decree in favor of Mrs. Hitz, even if this court, upon her appeal, had directed such a decree to be entered. That this court affirmed the decree appealed from did not change the fact that the title to property in the custody of the law, by a receiver, was attempted to be changed by that receiver, acting without special leave of court and under a private deed of trust, the validity of which was in issue in the very case in which the receiver was appointed. If this court had decided that Mrs. Hitz was entitled on her cross bill to have the deed made by herself and husband to Crane, and the deed by the latter to Tyler, set aside, and had remanded the cause with directions to enter a decree to that effect, the court below would have been confronted with the fact that its own receiver, in his capacity as private trustee, and without leave or direction to that end, had sold the property at public auction In Wiswall v. Sumpson, 14 How. 52, 65, 14 L. ed. 322, 328, it was said: "When a receiver has been appointed, his possession is that of the court, and any attempt to disturb it, without the leave of the court first obtained, will be a contempt on the part of the person making it. This was held in Angel v. Smith, 9 Ves. Jr. 335, both with respect to receivers and sequestrators. When, therefore, a party is prejudiced by having a receiver put in his way, the course has either been to give him leave to bring an ejectment or to permit him to be examined pro interesse suo. Brooks v. Greathed, 1 Jac. & W. 176; 3 Dan. Ch. Pl. & Pr. 1984. And the doctrine that a receiver is not to be disturbed extends even to cases in which he has been appointed expressly without prejudice to the rights of persons having prior legal or equitable interests. And the individuals having such prior interests must, if they desire to avail themselves of them, apply to the court either for liberty to bring ejectment or to be examined pro interesse suo; and this though their right to the possession is clear. 1 Cox, Ch. Cas. 422; 6 Ves. Jr. 287. The proper course to be pursued, says Mr. Daniel in his valuable treatise on Pleading and Practice in Chancery, by any person who claims title to an estate or other property sequestered, whether by mortgage or judgment, lease or otherwise, or who has a title paramount to the sequestration, is to apply to the court to direct the plaintiff to exhibit interrogatories before one of the masters, in order that the party applying may be examined as to his title to the estate. An examination of this sort is called an examination pro interesse suo, and an order for such examination may be obtained by a party interested, as well where the property consists of goods and chattels, or personalty, as where it is real estate. And the mode of proceeding is the same in the case of the receiver. 6 Ves. Jr. 287; 9 Ves. Jr. 336; 1 Jac. & W. 178; 3 Dan. Ch. Pl. & Pr. 1984." Again: "The settled rule also appears to be that where the subject-matter of the suit in equity is real estate, and which is taken into the possession of the court pending the litigation, by the appointment of a receiver, or by sequestration. the title is bound from the filing of the bill; and any[167] purchaser pendente lite, even if for a valuable consideration, comes in at his peril. 3 Swanst. 278, note, 298, note; 2 Dan. Ch. Pl. & Pr. 1267; 6 Ves. Jr. 287; 9 Ves. Jr. 336; 1 Jac. & W. 178; Dan. Ch. Pl. & Pr. 1984." It was contended in that case that a sale of the premises on execution and purchase occasioned no interference with the possession of the receiver, and hence no contempt of the authority of the court, and that the sale therefore, in such a case, should be up held. But this court, in words that are | which the sheriff's sale depended-the com strikingly applicable in the present case, mencement of the proceedings to enforce the thus disposed of that contention: "Conced-mechanic's lien, asserting the jurisdiction ing [that] the proceedings did not disturb and control of the state court over the propthe possession of the receiver, the argument erty sold-took place when that property does not meet the objection. The property was in the exclusive custody and control of is a fund in court, to abide the event of the the district court, and by reason of its proslitigation, and to be applied to the payment ecution to a sale was an invasion of the juof the judgment creditor, who has filed his risdiction of that court. No stress is laid bill to remove impediments in the way of on the fact that notice of the proceeding, by his execution. If he has succeeded in es- affixing a copy of the summons upon the tablishing his right to the application of any building, which was required by the statute, portion of the fund, it is the duty of the could only be made by an actual entry by court to see that such application is made. the sheriff upon the property, to that extent And, in order to effect this, the court must disturbing the possession of the marshal, be administer it independently of any rights cause the same result, in our opinion, would acquired by third persons pending the liti- have followed if no such notice had been regation. Otherwise the whole fund may have quired or given. The substantial violation passed out of its hands before the final de- of the jurisdiction of the district court concree, and the litigation become fruitless. It sisted in the control over the property in its is true, in administering the fund, the court possession, assumed and asserted, in comwill take care that the rights of prior liens mencing the proceedings to enforce against or encumbrances shall not be destroyed, and it the lien claimed by the plaintiffs in those will adopt the proper measures, by refer-actions, prosecuting them to judgment, and ence to the master or otherwise, to ascer- consummating them by a sale. The printain them, and bring them before it. Unless the court be permitted to retain the possession of the fund, thus to administer it, how can it ascertain the interest in the same to which the prosecuting judgment creditor is entitled, and apply it upon his demand? But it is not necessary to go this length in the case before us, as it is sufficient to say that the sale under the judgment, pending the equity suit, and while the court was in possession of the estate, without the leave of the court, was illegal and void. We do not doubt but that it would be competent for the court, in case the judgment creditor holding the prior lien had not come in and claimed his interest in the equity suit, to decree a sale in the final disposition of the fund subject to his judgment. The purchaser would then be bound to pay it off. [168]*But this disposition of the legal prior encumbrance is a very different matter, and comes to a very different result from that of permitting the enforcement of it, pendente lite, without the leave of the court. The rights of the several claimants to the estate or fund is then settled, and the purchase under the decree can be made with a full knowledge of the condition of the title or charges to which it may be subject." So, in Heidritter v. Elizabeth Oil-Cloth Co. 112 U. S. 294, 28 L. ed. 729, 5 Sup. Ct. Rep. 135, which was the case of a sale of property under process from a state court while it was in the actual possession of a district court of the United States. When the sale took place, the property had passed out of the possession of the Federal court, and there was no actual disturbance of such possession. Nevertheless, this court held the sale to be void, under the doctrine of Wiswell v. Sampson, saying: "The same conclusion must prevail here; for, although the sale under the judgments in the state court was not made until after the property had passed from the possession of the district court by delivery to the purchaser at the sale under the decree, yet the initial step on ciple applied in Wiswall v. Sampson, 14 We are not aware of any decision of this court modifying the rule laid down in these cases. To the same effect are Walling v. Miller, 108 N. Y. 173, 15 N. E. 65; Porter v. Kingman, 126 Mass. 141; Dugger v. Collins, 69 Ala. 324; Thompson v. McCleary, 159 Pa. 191, 28 Atl. 254; Ellis v. Vernon Ice, Light & W. Co. 86 Tex. 109, 23 S. W. 858; High, Receivers, 3d ed. 141; Kerr, Receivers, 2d ed. 177. In view of what has been said in the adjudged cases, it is clear that as between the parties to the original cause the title to the real estate in question was bound from the filing of the cross bill of Mrs. Hitz, and that her appeal, with supersedeas, from the decree of the general term, preserved her right to have this court determine the whole cause upon the merits, as from the commencement of her suit and as between her and the parties hostile to her claim. It is also clear, under the authorities, that if Tyler, while holding as receiver, had, in a separate suit against Sarah L. Crane, obtained a decree for its sale under the deed of trust, no title would have been acquired by the purchaser at such a sale. Still less could any title be acquired under a sale at public auction by Tyler acting in his capacity as private trus tee,-the property being at the time in his possession as receiver in another cause to which he was a party, and which had, at the time, been removed to this court by appeal with supersedeas. As receiver he held the property for Mrs. Hitz, as well as for Jenks, and he could not throw off the responsibility attaching to him in that capacity, and act, pending the appeal, simply as a private trustee under the deed from Sarah L. Crane. did not, we must assume, "intend to direct[171] or authorize a sale by the trustee, whereby the right of Mrs. Hitz to have a final determination, upon her appeal in the original cause, as to the binding force, as between the parties, of the deeds purporting to pass her interest in the property, would be overreached or defeated. Other questions were discussed at the bar, but they do not require to be specially noticed. In our judgment it must be held: (1) That the deeds which Mrs. Hitz sought by her cross bill to have set aside are to be deemed valid and enforceable instruments, But it is said that the decree of the general term must be construed as authorizing Tyler as trustee, in his discretion, to sell the property while in his possession as receiver after the appeal from that decree by [170] Mrs. Hitz had been perfected and a super-it having been so adjudged in Hitz v. Jenks, sedeas bond executed and approved. A complete answer to this suggestion is that Tyler sought no such relief at the hands of the court. He asked no affirmative relief. He only desired that the court should not restrain him by injunction from acting under the deed of trust. The words in the decree, "and he [Tyler] is hereby appointed receiver with power, until a sale shall be made under the said deed of trust, to take and hold possession of said real estate and premises, and to rent and manage the same, and to collect the rents and profits and apply the same to the payment of taxes, insurance, and any proper expenses," did not confer any direct authority on Tyler as trustee to sell the property. The court, having recited in the decree the allowance to Mrs. Hitz of an appeal, knew that such allowance removed the whole cause to this court (Ridings v. Johnson, 128 U. S. 212, 218, 32 L. ed. 401, 403, 9 Sup. Ct. Rep. 72; United States v. Rio Grande Dam & Irrig. Co. 184 U. S. 416, ante, p. 619, 22 Sup. Ct. Rep. 428), and that this court could determine, at least as between the parties, whether the deed of trust to Tyler was a valid instrument so far as it affected the rights of Mrs. Hitz. It knew that one of the questions to be determined upon her appeal was as to Tyler's right to proceed under that deed. We should not, therefore, interpret the words referred to as intended to authorize, much less direct, Tyler, the receiver for all the parties and the representative of the court, to proceed in his private capacity as trustee for one of the parties to sell the property outright, without any special order or direction to that effect. Neither Tyler nor Jenks, by their pleadings, 123 U. S. 297, 31 L. ed. 156, 8 Sup. Ct. Rep. 143; (2) that the sale by Tyler as trustee, on the 26th day of March, 1884, while holding possession of the property as receiver, and when the suit to which he was a party was pending here upon appeal with superagainst Mrs. Hitz; (3) that as no sale has sedeas, conferred no title upon Jenks as been made under the deed from Sarah L Crane to Tyler, trustee, which would bind Mrs. Hitz, she is entitled in this suit to redeem the property by paying such sum as may be due on account of the debt to secure which that deed was executed,-that sum to be ascertained by an accounting in the court of original jurisdiction, and the amount of all rents collected and all sums expended in the preservation or protection of the property to be taken into consideration. It results that the decree of the supreme court of the District of Columbia dismissing the bill in the present suit, and the decree of the court of appeals affirming that de cree, were both erroneous. The decree of the Court of Appeals of the District is reversed, and the cause remanded to that court, with directions to reverse the decree of the Supreme Court of the District, and for such further orders in each court as will be in conformity with the principles of this opinion. Reversed. Mr. Justice Brewer dissented. *DANIEL H. TALBOT, Piff. in Err., [172] 17. asked for any such direction or authority FIRST NATIONAL BANK OF SIOUX from the court. The words "until a sale shall be made under said deed of trust," reasonably interpreted, meant no more than that the power of Tyler as receiver to take and hold possession of the property for the purposes designated should continue until there had been such a sale under the deed of trust as could properly and legally be made, and such as would give the purchaser a good title. By dissolving the injunction -which was a matter of judicial discretion -the court, in effect, declared nothing more than that it would not, by injunction, restrain the trustee from doing what he might rightfully do under the deed to him. It 185 U. S. U. S., Book 46. 54 CITY, Iowa. 857 -usury by national banks-double recov- | said indebtedness, except that represented 1. The denial by a state court of a right of 2. court. No recovery, under U. S. Rev. Stat. § 5198, of twice the amount of usurious interest alleged to have been paid to a national bank, can be had on the theory that illegal interest was paid by a sale under foreclosure because, after deducting the interest charged in excess of the legal rate, the remaining legal interest, which under that section was subject to forfeiture, was included in the foreclosure decree, since it is the interest charged, and not the interest as to which a forfeiture might be enforced, that the statute regards as illegal. [No. 164.] by said note for $3,040.38, executed and de Argued March 17, 18, 1902. Decided April of the said notes and bonds, in all the sum 14, 1902. N ERROR to the Supreme Court of the firming a judgment of the District Court of Iowa for Woodbury County in favor of defendant in an action to recover back usurious interest from a national bank. Affirmed. See same case below, 106 Iowa, 361, 76 N. W. 726. of $47,020.37. That the items of interest upon the overdrafts aforesaid, charged upon account against plaintiff, were so charged of such charging were each and all at a higher rate of interest than that allowed by law of Iowa, corrupt and usurious, and in violation of §§ 5197 and 5198 of the Revised Statutes of the United States. The items of interest upon overdrafts aforesaid, charged by defendant and carried into the notes aforesaid, were knowingly charged, Statement by Mr. Justice McKenna: contracted for by their incorporation in said This action was brought by the plaintiff notes, reserved, taken, and received by the in error in the district court of Iowa, in and defendant as a part of the entire amount of for Woodbury county, under § 5198 of the interest paid by the plaintiff and knowingly Revised Statutes of the United States, to re-received by defendant, in the total amount cover twice the amount of interest alleged to have been due the defendant by the plaintiff on account of certain transactions had between it and the plaintiff. The district court gave judgment against the plaintiff, and the supreme court of the state affirmed the judgment. The Chief Justice of the state allowed this writ of error. The defendant in error was at the time of the transactions between it and the plaintiff a national bank. Plaintiff did business with it from January 1, 1886, until March, 1890, the instances of which are detailed in a pleading which occupies fifty-six pages of the record. During that time deposits were made by plaintiff with the bank, drafts were drawn by him, and his own and the promissory notes of others were given to the bank. Finally the transactions culminated, according to the petition, as follows: "That on or about the 15th day of March, 1890, all of the indebtedness evidenced by said charges, account, and notes then claimed by defendant against plaintiff was [173] incorporated into *certain bonds of that date made and executed and delivered by plaintiff to the Union Loan & Trust Company of Sioux City, Iowa, as trustee for defendant, which said bonds were in the sum of $1,000 each, in all one hundred bonds, into which at that time and subsequently all of of money collected upon said judgment and The answer of the defendant admitted substantially the allegations of the petition detailing the transactions between it and the plaintiff, but alleged that it charged plaintiff only the interest permitted by the laws of Iowa, "and that if at times, through the inadvertence or mistake of the clerks and accountants of the bank, the bank charged more than such proper rate, at other times, through similar inadvertence and mistake, a less amount was charged, so that, during the course of its business with the plaintiff, the total amount charged to him as interest upon overdrafts was two thousand seventyeight dollars and eighty cents ($2,078.80), while at the legal rate under the laws of Iowa, and according to the custom of bank ers, there was due from the plaintiff to the the negotiable bonds by plaintiff, and the the proceedings, the foreclosure of the mort- The answer also admitted that all the un- [175] *The answer also alleged that if usurious The answer also alleged a settlement between defendant and the plaintiff on the 17th of June, 1890, in pursuance of which the plaintiff delivered to the defendant $61,000 in the bonds already mentioned, and his promissory note for $3,048.38, and "that the said bonds and note were received by the defendant in full payment and settlement of all existing liability and indebtedness on the part of the plaintiff to the defendant, and thereby the plaintiff paid to this defendant all sums charged for interest or otherwise, and that the said settlement took place more than two years prior to the bringing of this suit, and this suit is therefore barred by lim itation." The answer also pleaded the foreclosure suit in bar. The plaintiff filed a reply traversing the allegations of the answer. The case was referred to a referee to re the determination of the case the court "Ninth. That in said cause a decree for ninety-four thousand five hundred seventyeight dollars and ninety cents ($94,578.90) was rendered, of which forty-nine thousand seventy dollars and forty-seven cents ($49,070.47) was principal, thirty thousand nine hundred eighty-eight dollars and fifty-two cents ($30,988.52) was interest, and fourteen thousand five hundred nineteen dollars and ninety-one cents ($14,519.91) was the amount paid on prior liens, taxes, and interest on same by plaintiff in that action. "Tenth. That the sheriff, under an execution issued on said decree, sold, March 19, 1894, plaintiff's property, amounting to thirty-six thousand four hundred thirty-nine dollars and fifteen cents ($36,439.15); and on May 19, 1894, under said execution, sold property amounting to fifty thousand and sixty dollars ($50,060); and on July 2, 1894, sold under said execution property amounting to twelve hundred dollars ($1,total of eighty-seven 200.00), making a thousand six hundred ninety-nine dollars and fifteen cents ($87,699.15) realized from sheriff's sale of said land under said decree, and leaving a balance, including the interest to date of sale of eleven thousand one hundred forty-one dollars and five cents ($11,141.05) unpaid on said judgment and decree, which balance, with interest, has not been paid. port the facts. It is not necessary to give "Twelfth. That plaintiff's overdrafts, in The referee also found the execution of cluding interest thereon, was paid June 17, |