#### HICKSON LUMBER COMPANY et al. v. GAY LUMBER COMPANY.

(Filed 31 March, 1910.)

1. Corporations — Insolvency—Receivers—Fund—Costs—Lowest Lien.

The effect of taxing court cost and compensation of the receiver of an insolvent corporation against the fund is to tax the whole sum against the holder of the lowest lien, and to pay prior liens in full if the fund be sufficient.

2. Same — Appeal and Error — Former Appeal — Parties Bound.

When upon a former appeal from an order of the iower court prorating the cost among claimants to a fund in the hands of *271the receiver of an insolvent corporation, the Súprem.e Court reversed the order and taxed the cost against the fund, the present appellant, who did not appeal from the order of the lower court, and who holds the least priority of lien, is bound by the decision in the former appeal, as therein he was virtually the appellee, the matter being between the litigants, and concerning them only.

Appeal by plaintiffs from Guión, J., at January (Special) Term, 1910, of SampsoN.

Tbe facts are stated in tbe opinion of tbe Court.

N. J. Rouse and Rountree & Carr for plaintiffs.

E. M. Land, G. V. Goivper and Simmons, Ward c& Allen for receivers.

Clark, C. J.

At June Term, 1908, of Lenoir, Neal, J., made an order in tbis cause apportioning tbe costs and tbe compensation of tbe receiver by prorating tbe amount among all tbe claimants to tbe fund. On appeal, tbis was beld to be an error, and tbat these amounts should be taxed against tbe fund. Lumber Co. v. Lumber Co., 150 N. C., 281. The effect is to tax tbe whole sum against tbe bolder of tbe lowest Tien, and to pay tbe prior liens in full.

Tbe appellant, tbe Hickson Lumber, Company, which bolds tbe lien of least priority, contends tbat as it did not appeal, tbe amount of tbe judgment against it at tbe June Term, 1908, cannot be affected. But tbe very nature of tbe exception in tbe former appeal called in question tbe correctness of prorating tbe costs and other expenses of tbis litigation, and tbe present appellant was therefore virtually tbe appellee in tbat appeal. It was not necessary, nor proper, tbat .the receiver and those entitled to tbe other costs in tbe case should have appealed. Bank v. Bank, 127 N. C., 435; Straus v. Loan Assn., 118 N. C., 563. They bad a prior lien on tbe fund, and bow tbe payment of tbe remainder of tbe fund should be apportioned was a matter between tbe litigants, and concerned them only.

Tbe court below has properly adjudged tbat tbe payment of tbe costs and receiver’s fees should come out of tbe fund, i. e., be paid out of tbe sum coming to tbe lienholders of tbe lowest priority, and- tbat as there has been overpayment to them, tbe deficiency shall be collected out of tbe refunding bond given by tbe appellant.

Affirmed.