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al., 15 N. B. R. 300.) An agistor who delivers a bankrupt's cattle to the assignee, without claiming a lien granted him for purchasing stock by a state statute, and allows it to be sold as belonging to the bankrupt's estate and unincumbered, waives the lien. (In re Mitchell, 8 N. B. R. 47; 5 Chi. Leg. News, 271; Fed. Cas. 9657.) Where a claim against the government is marked "worthless" in the schedule of assets, and is sold with the bankrupt's other property, the fact that the claim subsequently becomes valuable does not impair the validity of the sale. (Phelps, Ass, v. McDonald et al., 16 N. B. R. 217.)

Sale set aside.- A sale of the assets of the bankrupt's estate to him before the appointment of an assignee is void. (March, Ass., v. Heaton et al., 2 N. B. R. 66; 1 Lowell, 278; Fed. Cas. 9061.) The assignee's solicitor cannot bid at the assignee's sale (Citizens' Bank v. Ober, 13 N. B. R. 328; 1 Woods, 80; Fed. Cas. 2731); but such objection must be set up in the bankrupt court and not in a collateral action. (Spilman v. Johnson, 16 N. B. R. 145.) Where fraud in a sale by the assignee is alleged, every fact which is relied on to establish the fraud should be distinctly stated, and the whole should be verified by some one having knowledge of the circumstances. (In re Peabody, 16 N. B. R. 243; 9 Chi. Leg. News, 243; Fed. Cas. 10866.) If the assignee's petition for a private sale of the disputed interests of the bankrupt, an order by the register for such sale, and the assignee's report thereon, are all made on the same day, the order is void and the sale is a nullity. Notice of the petition for the sale of such an interest must be given personally to those claiming adversely, and the sale must be public, and after a public notice. (Ex parte Bryan, Ass., In re Major, 14 N. B. R. 71; 2 Hughes, 273; 23 Pittsb. Leg. J. 196; Fed. Cas. 2061.) The purchase from a general assignee of property, which a few months afterward is held at a vastly increased price, cannot be regarded as made in good faith, and may be set aside. When such sale is set aside by the court upon the ground of fraud, an application for the return of the purchase-money will not be granted unless the conveyance deeds be surrendered to be canceled. (In re Mott, 1 N. B. R. 9; Fed. Cas. 9879.) A sale to him of stock, held by a creditor as collateral security, for two-fifths of its value, will be set aside, and another sale ordered. The bankrupt court has discretion to refuse to confirm a sale made under its orders, for mere inadequacy of price, such sale being subject to the approval of the court. (In re Bousfield & Poole, 16 N. B. R. 481; Fed. Cas. 1703.) Where a suit to foreclose a mortgage is filed and a receiver is appointed before the institution of proceedings in bankruptcy, and the court orders the mortgaged property to be delivered to the assignee from the receiver, which is done against his protest, the property being sold under order of the court, the sale is void, and the trustees under the mortgage may recover the property from the purchasers, to whom the purchase-money will be returned. (Davis et al., Trustees, v. Railroad Co. et al., 13 N. B. R. 258; 1 Woods, 661; Fed. Cas. 3648.) Where,

after adjudication of bankruptcy, the appointment of the assignee and the conveyance by the register of the estate of the bankrupt, the holder of a mortgage brings foreclosure proceedings in a state court, making the assignee a party, and judgment is obtained and the property sold by the sheriff, such proceedings are void. (In re Brinkman, 7 N. B. R. 421; Fed. Cas. 1884.)

c. The title to property of a bankrupt estate which has been sold, as herein provided, shall be conveyed to the purchaser by the trustee.

Title of purchaser from assignee.- An assignee can transfer only such title as he may possess. (Second Nat. Bank of Louisville v. National State Bank of Newark, 11 N. B. R. 49.) When he sells property of the bankrupt incumbered by a mortgage, he conveys only the interest of the bankrupt, subject to the lien of the mortgagee. (In re Cooper, 16 N. B. R. 178; Fed. Cas. 3190.) When he sells incumbered property without any special order of the court, he sells it subject to all lawful incumbrances, and can convey no better or higher interest than the bankrupt could have done. (Ray v. Brigham et al., 12 N. B. R. 145.) When he sells to a third person property in which the bankrupt had title at the time of adjudication of bankruptcy, no other court can inquire whether such property was exempt from the assignment in bankruptcy. (Steele v. Moody, 16 N. B. R. 558.) A sale of land free from incumbrances does not pass to the purchaser the bankrupt's rights to any portion of the growing crops thereon, stipulated to be paid him by way of rent. (In re Bledsoe, 12 N. B. R. 402; 1 N. Y. Wkly. Dig. 101; Fed. Cas. 1533.) Parties who purchase the property and franchise of a corporation from the assignee do not thereby become its corporators and acquire the corporate entity. (Metz, Adm'x, etc. v. Buffalo, Corry & Pittsburg R. R. Co., 12 N. B. R. 559.) The record of the assignment is not necessary to give force or validity to the transfer to the assignee, or for the purpose of constructive notice, but to enable the purchaser under the assignee to have in the proper county a record of his derivative title. (Davis v. Anderson, 6 N. B. R. 146; Fed. Cas. 3623.) A purchaser of mortgaged property, sold under a judgment of foreclosure by permission of the bankrupt court, will not be relieved from the purchase, nor can an assignee in bankruptcy of the mortgagor set aside such sale. (Lenihan v. Hanson, 8 N. B. R. 557.) A district court will not grant an injunction to restrain a mortgagee from prosecuting a suit in trover against the purchaser of mortgaged property sold by the assignee of the bankrupt without an order of court. (In re Cooper, 16 N. B. R. 178; Fed. Cas. 3190.) If the assignee make a sale of property, but refuse to deliver possession, he is liable to an action at law, if the sale has never been brought to the attention of the bankrupt court, nor acted on by it. (Ives

et al. v. Tregent, 14 N. B. R. 60.) Where property is purchased at an assignee's sale, which the bankrupt holds claiming homestead exemption, the validity of the sale cannot be questioned. (Steele v. Moody, 16 N. B. R. 558.) Where the bankrupt occupies premises until the conveyance is made by the assignee to a purchaser, and after the purchaser has perfected the title the bankrupt agrees to vacate on a specified day and does not do so, he holds as tenant under the purchaser and not under the assignee. (In re Hale, 19 N. B. R. 330; Fed. Cas. 5912.)

Where a wife applies for exemptions to which the trustee objects on the ground that the husband's property, including exemptions, passed to the marshal, and that he had been allowed exemptions, and action in ejectment is brought against the bankrupt, purchasers of the lands from the assignee having notice at the time the portion was set apart for the wife, and that the bankrupt husband was her tenant and that he had not been discharged, the taking of an exemption by the bankrupt defeats the wife's rights to a homestead, and the purchaser at the assignee's sale has good title as against the wife and children. (Woolfolk v. Murray, Bryan v. Sims, 10 N. B. R. 540; Fed. Cas. 18028.)

A purchaser of real estate at a foreclosure sale will not be discharged from his purchase on the ground that the title is defective by reason of proceedings in bankruptcy having been begun against the owners of the equity of redemption. (Lenihan v. Haman et al., 11 N. B. R. 471.)

d. Whenever a composition shall be set aside, or discharge revoked, the trustee shall, upon his appointment and qualification, be vested as herein provided with the title to all of the property of the bankrupt as of the date of the final decree setting aside the composition or revoking the discharge.

Upon application of parties in interest filed at any time within six months after a composition has been confirmed, the judge may set it aside and reinstate the case (sec. 13), or he may revoke a discharge at any time within one year after it was granted. (Sec. 15.)

Composition set aside.-An assignment to an assignee after an incomplete composition must be without prejudice to lawful acts done or titles acquired under and by virtue of such composition. (Ex parte Hamlin, 16 N. B. R. 320; 2 Lowell, 571; 5 Cent. Law J. 281; Fed. Cas. 5993.)

e. The trustee may avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided, and may recover the property so transferred, or its value, from the person to whom it was transferred, unless he was a bona fide holder for value prior to the date

of the adjudication. Such property may be recovered or its value collected from whoever may have received it, except a bona fide holder for value.

Any preference given by a bankrupt within four months before the filing of the petition and before the adjudication, where the person benefited had reasonable cause to believe it was intended as a preference, is voidable by the trustee (sec. 60, b); so is any payment to counsel except to the extent of a reasonable amount. (Sec. 60, d.) Any lien created in pursuance of suit in law or equity within four months before the filing of a petition shall be dissolved, and any conveyance, transfer, assignment or incumbrance of the bankrupt's property, with intent to defraud or delay his creditors, is null and void as against the creditors, except as to purchasers in good faith and for present consideration.

Property that may be recovered by the assignee - Nature of action.- Where the property in controversy at the time the debtor is adjudged bankrupt is in the actual possession of a third person claiming absolute title to the same, the question of ownership, if the same is claimed by the assignee, must be determined by a suit in equity or by an action at law, subject to re-examination as provided in the law of the place where the suit is commenced. (Knight v. Cheney, 5 N. B. R. 305; Fed. Cas. 7883.) A state court passing upon claims of an assignee is not proceeding under the Bankrupt Act, but simply recognizes that act as the source of the assignee's title, in like manner as it would if such title were derived from a contract or deed. (Cook v. Waters et al., 9 N. B. R. 155.) An action by the assignee to collect a debt due the bankrupt is not a matter of proceeding. (Kidder, Ass., v. Horrabin et al., 18 N. B. R. 146.) A district court may not proceed summarily against persons claiming title to property adverse to that of the assignee. The proceeding must be by suit at law or in equity. (In re Marter, 12 N. B. R. 185; Fed. Cas. 9143; In re Bonesteel, 3 N. B. R. 127; 7 Blatchf. 175; Fed. Cas. 1627; Rogers v. Winsor, 6 N. B. R. 246; Fed. Cas. 12023.) Where a fund in a depositary's hands is claimed absolutely by several parties, and among them by the assignee, the possession of the depositary is the possession of the claimant, if the claim be just and legal, and proceedings to recover must be by suit in law or equity. (Smith v. Mason, 6 N. B. R. 1; 14 Wall. 419.) A petition of a bankrupt's assignee to recover property from one claiming by virtue of a voluntary assignment brought in the bankruptcy court is a suit at law. (In re Krogman, 5 N. B. R. 116; Fed. Cas. 7936.) Where an assignee obtains an order of the district court requiring the bankrupt and others to deliver to him the property belonging to the bankrupt, an appeal will lie although the proceedings below be by petition. (Samson v. Blake, 6 N. B. R. 401; Fed. Cas. 12284.) A circuit court will entertain a bill by the assignee against mortgagors and other lien-holders to ascertain the amount due, and sell all the property free from incumbrances. (Sutherland et al. v. Lake Superior Ship

Canal, Railroad & Iron Co., 9 N. B. R. 298; 1 Cent. Law J. 127; Fed. Cas 13643.)

An as

Assignee represents the bankrupt and also his creditors. signee represents the rights of the creditors as well as the bankrupt, and may therefore maintain or defend proceedings in regard to the property of the latter, which, on grounds of public policy or otherwise, he would not be allowed to do. (In re St. Helen's Mill Co., 10 N. B. R. 411; 3 Sawy. 88; 8 West. Jur. 597; Fed. Cas. 12222.) As the adjudication of bankruptcy is in the nature of a statute execution for all the creditors, the assignee, as their representative, may enforce against the debtor every right a judgment creditor could enforce. (Barnewall & Gaynor, Ass., v. Jones et al., 14 N. B. R. 278; Fed. Cas. 1027.) If creditors who have received from a bankrupt full payment of their debts sign an agreement with other creditors to take a certain amount on the dollar in the future, this constitutes a fraud which will give a right of action both to the debtor or creditor thereby injured, and such creditors will be liable to the assignee, who represents both the rights of the bankrupt and of creditors who have been defrauded. (Bean v. Brookmire & Rankin, 7 N. B. R. 568; 2 Dill. 108; 5 Chi. Leg. News, 314; 2 Amer. Law Rec. 222; 6 Amer. Law T. Rep. 418; 7 West. Jur. 324; Fed. Cas. 1170.)

Limitation of actions by and against assignee. See SUITS BY AND AGAINST BANKRUPTS, Sec. 11.

Recovery of fraudulent conveyances.-The right given the assignes of recovery of property transferred by an insolvent debtor is not a penalty, but has its operation in the vesting of the title in the assignee after the transfer is declared void. (Cook v. Waters et al., 9 N. B. R. 155.) A creditor should not bring suit after proceedings in bankruptcy are begun to set aside a conveyance claimed to be void, but such suit should properly be brought by the assignee (Thurmond v. Andrews and Wife, 13 N. B. R. 157), who stands in the place of an attaching or execution creditor and may impeach the validity of a secret mortgage of his assignor. His right is stronger than the right of the bankrupt. (In re Gurney, 15 N. B. R. 373; 7 Biss. 414; 9 Chi. Leg. News, 255; 4 Law & Eq. Rep. 28; Fed. Cas. 5873.) Where a bankrupt executes a mortgage two days before his adjudication as such on his own petition, and the assignee petitions for an order that he may pay to him the proceeds thereof, the bankrupt may retain from the proceeds the sum paid counsel for preparing his petition and schedules, and an amount, to be determined by the assignee, sufficient for the support of himself and family. (In re Thompson, 13 N. B. R. 300; 2 N. Y. Wkly. Dig. 4; Fed. Cas. 13938.) He can avoid any conveyance which the creditors could avoid although made more than six months before bankruptcy. (Pratt v. Curtiss, 6 N. B. R. 139; 2 Lowell, 87; Fed. Cas. 11375.) Where a petition in bankruptcy is filed against an insolvent more than two months after executing a mortgage, but within two months of the filing of the same for record, and the state registry law provides that the mortgage is not "good in law to hold lands against

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