delivered the opinion of the Court:
1. Though quite elaborate, the answer of the respondent to the rule to show cause was, in its essential features, responsive to the allegations of the petition on which the rule had been entered. There was no replication to the answer, and no denial, in any form, of the specific facts therein alleged.
The hearing, as we have seen, was upon the petition and answer; consequently, for the purposes of this determination the facts of the answer must be taken as true. The result is practically the same as if a demurrer to the answer had been sustained.
2. A preliminary question arises on the suggestion of the appellees that the respondent, not having been a party to the suit out of which this proceeding grew, has no right to appeal from the order entered against him. This sugges*265tion — substantially a motion to dismiss — is founded on a decision of this court dismissing the appeal of trustees, for the sale of property under a decree, from an order setting aside the sale reported by them. Hallam, v. Oppenheimer, 3 App. D. C. 329. That decision is not in point. The trustees were officers of the court appointed to make a sale; to perform a duty with which the court was charged. The real parties at interest entered no objection and took no appeal. The order did not affect the trustees in any respect.
Nor is there any analogy between the present appeal and that of Bohrer v. Otterback, 2 App. D. C. 78; for that was a case where an attorney, having a claim against one of the parties arising'out of a different proceeding, intervened and asked to have payment made thereof, as part of the costs, out of a fund under the control of the court, “ apparently neither created nor preserved for a common benefit by the efforts of the petitioner or of the client whom he represents.”
The appellant here would have no right to appeal from the decree of sale, nor from the order confirming the same; but by the subsequent proceeding he has been subjected to the jurisdiction of the court and made liable by decree therein rendered. “ He has, therefore, the corresponding right to contend against all claims made against him. Nor this purpose he occupies the position of a party to the suit, although an officer of the court, and after the final decree below has the right to his appeal here.” Hinckly v. Gilman, etc., RR. Co., 94 U. S. 467, 469; Blossom v. Railroad Co., 1 Wall. 655; Williams v. Morgan, 111 U. S. 684, 699.
3. Nrom the facts alleged in the answer and supported by the exhibits thereto attached, we must assume that the respondent was retained to bring the suit for partition in the name, not only, of William H. Marshall, but also of Alice Carter and Henrietta Marshall, the appellees.
Moreover, it is manifest, by their own proceedings set' forth in the record, that they were, at least, cognizant of the depending suit. And despite their allegation “ that they did not want the property sold, and if there had been any way known to them to prevent said sale they would have *266done so,” they appeared in the canse on April 16, 1901, by other counsel, and joined with the other parties in a consent decree confirming the report of sale, and directing the auditor to state the account and the scheme of distribution of the net proceeds.
Up to the date of that decree it seems that the respondent was the only attorney of record for any of the parties. He was not notified of this order of final ratification of the sale, nor was he of the reference to the auditor, and the confirmation of his report when subsequently made.
It seems, also, though it is not made clear, that the conditional order of ratification of the sale, that is referred to but not set out in the record, was for the purpose of giving the purchasers —■ themselves parties at interest —the opportunity to raise the money to pay their bid in cash, instead of part cash, as provided in the decree of sale.
The delay in concluding the sale was very great and is not explained; but the record also fails to show any action taken by the distributees of the fund towards despatch therein until the consent order of April 16, 1901, before referred to. It appears from the respondent’s answer that the cash was not actually paid to him by the purchasers until May 3, 1901 — three days after the confirmation of the auditor’s report. It appears, also, that, in addition to the taxes ordered paid in the decree of sale, he paid other taxes — not included in the auditor’s report —■ without which payment the parties lending the money to the purchasers to pay for the property would not pay over the same.
It is the proportion of this payment, and of the fee of the respondent as attorney, due by the appellees, that the respondent, as trustee, seeks to retain from the fund in his hands.
In respect of the taxes paid, it does not certainly appear that they were within the terms of the order of sale which directed the payment by the trustee of “ all taxes and assessments against the said property, if any, to the day of sale.”
To protect himself in that payment, if [of] a tax later than the date aforesaid, he should have applied to the court for *267an additional order, or at least have procured the consent of all the distributees of the fund.
If the payment was for taxes accruing before the day of sale, the respondent should have credit for the same in final settlement; if not, then, prima facie, they are chargeable to the purchasers whose title relates back to the time of their purchase. Inquiry into these matters, on behalf of the trustee, ought not to be precluded by the order of reference to the auditor or that confirming his report, of which he had no notice, and for want of notice, no opportunity to be heard.
The respondent’s claim of hen upon the fund for his fees presents a distinct question.
So far as the record and his answer disclose, he was the sole attorney of record in the cause until the entry of the order of April 16, 1901.
Assuming that he performed services for the appellees, as their solicitor, under an express or implied contract, he would have a hen upon the shares of the fund coming to them, had the same come into his possession as their attorney solely. And if the fund had been paid into court, he ought, as the attorney by whose efforts that fund had been created, to be entitled to an order of payment therefrom, if necessary to his complete protection.
But the fund came into his hands as the trustee appointed by the 'court, and, less such sums as may have been paid out by virtue of previous orders, was subject to the disposition of the court.
In responding to the rule he would better have paid the entire sum in his hand into the court, and then have asked the court for an allowance therefrom on account of additional taxes paid and his fees as solicitor.
It would be a bad practice to permit trustees, appointed for such purposes, to retain any portion of the fund in their hands on account of claims, no matter how meritorious they might be, that have their origin in another and distinct relation with the distributees. - • '
*268Tbe court was right, therefore, to tbe extent that it refused to make tbe allowance as claimed in tbe answer and limit tbe order of payment to tbe sum in band after deducting tbe amount of tbe allowances.
But as tbe answer disclosed tbe grounds of tbe respondent’s claim for reimbursement and allowance, we are of opinion that tbe proper order would have been to pay tbe entire fund into court'with leave to all parties for further bearing in respect of tbe matters of difference between them.
Bor these reasons tbe order appealed from will be reversed, with costs, and tbe cause remanded for further proceedings not inconsistent with this opinion. It is so ordered.
Reversed.