There is but one question presented on this appeal: Was there error in the order of Phillips, J., in directing the pro rata part of receivership expenses to be charged against the fund now in the hands of receivers derived from rents collected on the mortgaged property?
Ordinarily the owner of the indebtedness under a deed of trust which is in default is entitled to the possession of the mortgaged property until the debt is paid or until foreclosure, subject to the duty of crediting the indebtedness with a reasonable rental for the property during the time the mortgage creditor is in possession. In this instance the movant, mortgage creditor, was deprived of this right by an order of the court. It thereupon entered into an agreement with the receivers under the terms of which the net rentals after deducting rental agency commissions, cost of repairs, taxes, insurance and other expenses directly incident -to the management and control of the property, were to be segregated and paid to the movant. This agreement was later ratified and approved in the order of Armstrong, J. That there was no real misunderstanding as to the exact terms of this agreement and the order of Armstrong, J., is apparent. The receivers, under their interpretation of the agreement and the order, paid over to the movant the net rentals accruing up to 4 September, 1936. They did not then deduct, or claim the right to deduct, any part of the cost of the receivership. They correctly interpreted the language “and other items properly chargeable thereto” in the order of Armstrong, J., to mean other items of expense similar to those enumerated.
A careful reading of the judgment entered by Phillips, J., leads us to the conclusion that he also placed this interpretation upon the order of Armstrong, J., rather than the interpretation that .“and other items properly chargeable thereto,” included a ratable part of the receivership expenses as now contended by the receivers. He ordered “that the receiver herein, pursuant to the order of Frank M. Armstrong, Judge presiding, signed the 21st day of May, 1931, charge against the net rents collected all of the items referred to in the order and the pro rata part of receivership expenses. The items referred to in the order included all items properly chargeable thereto and, as theretofore correctly interpreted by the parties, referred to items of expense in connection with the management and control of the property. The order of Phillips, J., simply superimposes an additional charge against this fund.
If, however, the court below, in ordering the pro rata part of receivership expenses to be charged against the special fund in the hands of receivers, proceeded upon the theory that expenses of receivership were embraced within the general clause “and other items properly chargeable thereto” in the order of Armstrong, J., the court was in error. We *634are of tbe opinion that this general term in the former order relates back to and must be interpreted in connection with the specific items of expense enumerated in the order. It necessarily means other like expenses or other expenses incurred in the management of the property. Thus the parties themselves interpreted the order over a period of years.
Without debating whether the movant would be entitled in any event to the net rentals without deduction of any part of the receivership expenses, we are of the opinion that the order of Armstrong, J., based as it was upon the consideration that the movant would waive all claim for deficiency against the receivership estate, which order was entered without exception, is final and conclusive as to the matters now in controversy. The matter of the rights of the movant as to the rents derived from said property having been submitted to 'and adjudicated by Armstrong, J., no other Superior Court judge possessed the power and authority to review such order and to enlarge the number of items to be charged against the gross rent before the payment of any part thereof to the movant. When the cause came on to be heard before the court below it was res judicata except as to the motion of the movant to require the receivers to comply with the former order. The movant was entitled to an order as prayed requiring the receivers to comply with the order of Armstrong, J.
This cause is remanded to the end that an order may be entered requiring the receivers to forthwith pay to the movant the net amount of rents now in their hands without deduction of any part of the receivership expenses.
Reversed.