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to the institution of bankruptcy proceedings, but in pursuance of a parol agreement of several months previous, it is valid as against the assignee. (Burdick, Ass., etc. v. Jackson et al., 15 N. B. R. 318.) The filing of a bill for the sale of property free from incumbrances does not give the mortgagee a right to the rents thereafter collected. The assignee is entitled to the rents until the mortgagee claims them. The filing of a petition and notice thereof to the assignee is sufficient to entitle the mortgagee to rents thereafter accruing. (In re Bennett, 12 N. B. R. 257; 2 Hughes, 156; Fed. Cas. 1313.) Where a debtor is adjudged bankrupt, and incumbered property coming into the hands of the assignee is sold, but does not satisfy a mortgage, the mortgagee is entitled to the rents and profits only from the date of notice to the assignee of intent to enforce the right to them. (In re Bennett, 12 N. B. R. 257; 2 Hughes, 156; Fed. Cas. 1313.) When a receiver of the rents and profits of the real estate is appointed after the mortgagor files his petition in bankruptcy, but before adjudication, and a sale of the premises does not satisfy the mortgage debt, the mortgagee is entitled to the rents in reduction of the deficiency. (Hayes v. Dickinson, 15 N. B. R. 350.) A mortgagee of real estate, with condition broken before the institution of proceedings in bankruptcy, where the mortgage is valid as against the bankrupt law, is entitled to all the bark, wood and timber cut on the premises and crops unharvested, as against the assignee of the mortgagor. (In re Bruce, 16 N. B. R. 318; 9 Ben. 236; Fed. Cas. 2045.) An assignee cannot make up, out of the general funds of the estate, any difference between the net proceeds of the sale of the mortgaged property and the amount due to the mortgagee by virtue of the mortgage. (In re Purcell & Robinson, 2 N. B. R. 10; 2 Ben. 485; 36 How. Pr. 42; Fed. Cas. 11469.) The assignee takes the property of the bankrupt subject to all equities and liens as held by him, and a mortgage, which under a state law is valid as between the bankrupt and his grantees, although not recorded, is valid as between the bankrupt's trustee and them. (Potter et al. v. Coggeshall, 4 N. B. R. 19; Fed. Cas. 11322.) He cannot impeach the validity of a mortgage which is void as against creditors on account of the omission to record it as required by state laws. (In re Collins, 12 N. B. R. 379; 12 Blatchf. 548; 1 N. Y. Wkly. Dig. 78; Fed. Cas. 3007.) He simply succeeds to the rights the bankrupt had in property, and a suit may be maintained to correct a description in a mortgage given by the bankrupt. (Schulze, Ass., v. Bolting, 17 N. B. R. 167; 8 Biss. 174; Fed. Cas. 12489.) If a guardian transcend his power by making an agreement to discharge one mortgage and take a new one, such agreement is only voidable, and that only at the election of the ward on coming of age, and it is valid against the assignce of the mortgagor until so avoided. (Burdick, Ass., v. Jackson et al., 15 N. B. R. 318.)

An unrecorded chattel mortgage, having been delivered to, and retained by, the mortgagee, is valid as against the mortgagor's assignee. (In re Griffiths, 3 N. B. R. 179.) A mortgage executed in good faith to

secure future sales of goods to the mortgagor is good as against the assignee to the extent of advances actually made. (Marvin, Ass., v. Chambers, 13 N. B. R. 77; 12 Blatchf. 495; 1 N. Y. Wkly. Dig. 365; Fed. Cas. 9179.) Where a mortgage made by a railroad corporation provides that it shall include all property subsequently acquired by the mortgagor, it will include a railroad with its appurtenances subsequently leased by the mortgagor, and the title thereto will be valid as against the assignee of the mortgagor. (Barnard et al., Ass., v. Norwich & Worcester R. R. Co. et al., 14 N. B. R. 469; 4 Cliff. 351; 3 Cent. Law J. 608; 5 Amer. Law Rec. 361; 22 Int. Rev. Rec. 312; Fed. Cas. 1007.) A chattel mortgage given for a present consideration, and good between the parties, is not rendered invalid as against the assignee by failure to file the same, or take possession of the property, until a month before the commencement of proceedings in bankruptcy, notwithstanding the mortgagee knew the mortgagor to be insolvent, and that the instrument gave him a preference. (In re Barman et al., 14 N. B. R. 125; 3 N. Y. Wkly. Dig. 111; Fed. Cas. 999.)

The relation of assignee to trust property.—The possession of assets in the use of a bankrupt, though by a defeasible title, makes a sufficient title for his assignee until it should be successfully disputed. (In re Beal, 2 N. B. R. 178; 1 Lowell, 323; 2 Amer. Law T. Rep. Bankr. 95; 1 Chi. Leg. News, 326; Fed. Cas. 1156.) Where money is placed in the hands of another to be invested by him in trust, and he fails to invest it, but uses it in his speculations and afterwards becomes bankrupt, so that the property does not remain in specie, the cestuis que trust must come in pari passu with the other creditors, and prove against the trustee's estate for the amount due them. (In re Faneway, 4 N. B. R. 26.) If a trustee deposit the trust funds in a bank with his own, in his own name, after his bankruptcy the mode of ascertaining how much belongs to the trust estate is to take the deposits and withdrawals in the order of their dates, find out how much of the balance belongs to the trust and how much to the general fund, and divide accordingly. (Ex parte Hobbs, In re Hapgood, 14 N. B. R. 495; 2 Lowell, 491; Fed. Cas. 6549.)

Trusts that do not pass to the assignee.- Property held in trust merely, by a bankrupt, does not pass to his assignee, but if his trust be coupled with an interest the assignee is vested with such interest. (Walker, Ass., v. Seigel & Bott et al., 12 N. B. R. 394; 2 Cent. Law J. 508; Fed. Cas. 17085.) If a deed of trust be actually delivered to the trustee, with power to record it when he deems proper, it is valid as against the assignee, although it is not recorded until after the grantor's failure. (National Bank of Fredericksburg v. Conway et al., 14 N. B. R. 513; 1 Hughes, 37; Fed. Cas. 10037.) Where a will gives a trustee an absolute discretion, which he is not obliged to exercise in favor of the bankruptthe bankrupt has not such an interest as his assignee can establish. (Nichols, Ass., v. Eaton et al., 13 N. B. R. 421; 91 U. S. 716.) Where a creditor has received from his debtor money, under circumstances which are

entirely lawful, it is free from all trust and claim on behalf of the cestui que trust, unless it be shown that the creditor knew of the trust. (White v. Jones, 6 N. B. R. 175; 29 Leg. Int. 325; Fed. Cas. 17550.) Where suit is brought by a bankruṛt against an express company for negligent loss of goods, the court will not charge the jury that the verdict, if for the plaintiff, be for the use of the trustee in bankruptcy. (Southern Express Co. v. Connor, 12 N. B. R. 53.) Where a sum is deposited in trust, the income of which is to be applied to the support of the cestui que trust and his wife, and for the maintenance and education of their children, the annuity and principal sum being declared to be inalienable by the grantees, and not subject to their debts or control, such income does not pass to the assignee in bankruptcy, nor can the court decree an aliquot part to the assignee. (Durant, Ass., v. Insurance Co., 16 N. B. R. 324; Fed. Cas. 4188.)

Fraudulent conveyances.— A general assignment for the equal benefit of all creditors is void as against an assignee in bankruptcy, being at war with the policy of the bankrupt law. (Globe Ins. Co. v. Cleveland Ins. Co., 14 N. B. R. 311; 8 Chi. Leg. News, 258; 4 Amer. Law Rec. 652; 13 Alb. Law J. 305; Fed. Cas. 5486.) Title to real estate will not pass under an assignment of "all the goods, chattels and effects and property of every kind, personal and mixed," of the assignor, for the benefit of his creditors. (Rhoads v. Blatt, 16 N. B. R. 32.) An assignee under a state law will be allowed the amount of his disbursements made before a gen eral assignment in bankruptcy under the bankruptcy law. (Macdonald, Ass., v. Moore et al., 15 N. B. R. 26; 8 Ben. 579; 1 Abb. N. C. 53; 23 Int. Rev. Rec. 25; 3 N. Y. Wkly. Dig. 461; 24 Pittsb. Leg. J. 83; Fed. Cas. 8763.) The title of an assignee in bankruptcy who was assignee under a deed of assignment relates back to the execution of the deed, and all his acts after he received the property and assets, not inconsistent with his title and duty as assignee in bankruptcy, will be ratified by the court. (In re Walker, 18 N. B. R. 56; Fed. Cas. 17063; In re Biesenthal et al., 15 N. B. R. 228.)

Where a motion is made for attachment for contempt against one to whom there has been a general assignment of all the goods of a debtor for the benefit of his creditors, and an injunction has been issued to restrain him from disposing of the bankrupt's property, but he thereafter sells it, the motion will be dismissed, as it involves the determination of the assignee's title by summary proceedings. (In re Marter, 12 N. B. R. 185; Fed. Cas. 9143.) Where a fund is in the hands of an assignee in bankruptcy for distribution, to which assignees of the bankrupt under a general assignment and assignees under a special assignment prior to the general one both lay claim, and an equity suit is pending between the parties involving their rights to the fund, the bankrupt court will detain the fund until the rights of the parties are determined. (In re Sabin, 18 N. B. R. 157: 10 Chi. Leg, News. 364; 3 Cin. Law Bul. 625; Fed. Cas. 12195.) Where, six months prior to bankruptcy proceedings, the bankrupt makes

a voluntary assignment, and before the filing of the petition a receiver is appointed in proceedings supplementary to execution, a suit against the bankrupt, the assignee in bankruptcy, and the voluntary assignee, to set aside the voluntary assignment as void, properly joins them as defendants, and the property covered thereby is "property transferable to and vests in the assignee." (Onley, etc. v. Tanner et al., 19 N. B. R. 178; Fed. Cas. 10506.)

Where a debtor is arrested, under a warrant issued pursuant to the provisions of a state law, for fraudulently conveying his property prior to the passage of the Bankrupt Act, and the defendant moves to quash the warrant on the ground that before it was issued he had applied for a discharge, proceedings on which are pending, the motion to quash will be granted, and the title to the property fraudulently conveyed will be regarded as vested in the assignee. (Goodwin v. Sharkey, 3 N. B. R. 138.) The statutory trust of creditors in real estate held by the wife of a debtor, who is subsequently adjudicated a bankrupt, inures as assets to the assignee when the estate is purchased by the bankrupt prior to bankruptcy and is paid for with his own money in fraud of his creditors. (In re Meyers, 1 N. B. R. 162; 2 Ben. 424; Fed. Cas. 9518.) A conveyance of lands for the purpose of protecting the same from sale for the benefit of creditors of the grantor is valid as between the grantor and grantee, and vests a valid title and estate thereto in the vendee which would pass to his assignee in bankruptcy. (In re O'Bannon, 2 N. B. R. 6; Fed. Cas. 10394.) An assignment of lands for the benefit of such creditors as should sign a compromise agreement and of none others is void as against the assignee in bankruptcy. (In re Broome, 3 N. B. R. 113; Fed. Cas. 1967.)

No payment by or to a bankrupt subsequent to the commencement of bankruptcy proceedings in relation to transactions which took place prior to such date is valid, even though made or received bona fide or without notice. (Mays v. The N. Nat. Bank, 4 N. B. R. 147.)

Liens for rent as against assignee. If the landlord have no lien on the bankrupt tenant's goods as against the bankrupt on the day the petition is filed he has none subsequently as against the assignee. (In re Butler, 6 N. B. R. 501; 19 Pittsb. Leg. J. 146; 3 Pittsb. Rep. 369; Fed. Cas. 2236.) The levying of a distress warrant after the commencement of proceedings in bankruptcy, but before the appointment of the assignee, does not give the landlord a lien on the property levied upon as against the assignee. (Morgan v. Campbell, Ass., 11 N. B. R. 529.)

Assignee's relations to leases.- Bankruptcy and judgments are involuntary, and do not avoid covenants against assignments and transfers, either in leases or policies of insurance. (Starkweather v. Cleveland Ins. Co., 4 N. B. R. 110; 3 Chi. Leg. News, 77; 28 Leg. Int. 36; 10 Amer. Law Reg. (N. S.) 333; 5 Amer. Law Rev. 568; Fed. Cas. 13308.) An assignee who knows nothing of the existence of a lease effected by the

bankrupt is not bound by its covenants. There must be some unequivocal and positive act of acceptance of the lease before the assignee can be held liable. (In re Washburn, 11 N. B. R. 66; Fed. Cas. 17211.) The assignee, unless restrained by the terms of the lease itself, may adopt or reject it on behalf of the estate, as he finds most beneficial for the creditors, and may take a reasonable time for decision. Where the rent is very large a speedy decision would be demanded. (In re Laurie, Blood & Hammond, 4 N. B. R. 7; White v. Griffing, 18 N. B. R. 399.) Until the assignee elects to accept a lease as assignee, he does not become liable for rent accruing after the adjudication in bankruptcy. (In re Ten Eyck & Choate, 7 N. B. R. 26; Fed. Cas. 13829; In re Laurie, Blood & Hammond, 4 N. B. R. 7.) Where the assignee accepts a lease held by the bankrupt, and sells the interest so acquired to the lessor, the guarantor of the lease is discharged from all liability accruing after commencement of the bankruptcy proceedings, as the lease is extinguished. (White v. Griffing, 18 N. B. R. 399.) A lease which cannot be assigned without the consent of the landlord is canceled by the bankruptcy of the tenant. (In re Breck & Schermerhorn, 12 N. B. R. 215; 8 Ben. 93; Fed. Cas. 1822.)

Title to funds in bank, etc.-The obligation incurred by a banker is not fiduciary in its nature, but is the liability only of an ordinary debtor, and his assignee will not be required to pay, out of funds belonging to the bank, the amount of a note and interest, on the ground that it had been placed in the bank simply for collection, the customer's account having been overdrawn at the time of crediting the proceeds on the books of the bank. (In re Bank of Madison, 9 N. B. R. 184; 5 Biss. 515; Fed. Cas. 890.) Where a depositor, immediately after making a deposit, draws a check for the amount in payment of a draft drawn by the bank, the title to the money deposited passes to the bank, although the banker was insolvent and knew at the time that the draft would be dishonored, and such depositor is only entitled to share pro rata with the other creditors. (In re King, 8 N. B. R. 285.) Where one buys of a banker, afterwards bankrupt, a check on another bank that is not presented for payment until after bankruptcy of the drawer, when payment is refused, the funds in the bank pass to the assignee of the bankrupt and the purchaser is not entitled to priority of payment. (In re Smith, 12 N. B. R. 459; 2 Cin. Law Bul. 119; Fed. Cas. 12990.) An arrangement between two banks, by which the one acts as agent for the other for clearinghouse purposes, the latter agreeing to keep on deposit with the former sufficient funds to meet all its checks which are received at the clearinghouse, creates the relation of debtor and creditor upon the bankruptcy of the former, and the amount so held on deposit passes to the assignee. (Phelan, Ass., v. Iron Mountain Bank, 16 N. B. R. 308; 4 Dill. 88; 5 Cent. Law J. 351; Fed. Cas. 11069.) The title to the money in the bank, upon the presentation of a check by the payee thereof, is superior to the banker's lien for maturing paper, and will pass to and may be enforced

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