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given to all creditors of the proposed sales of property (sec. 58—4), which sales must be by public auction unless otherwise ordered by the court. For good cause the court may authorize the trustee to sell any specified portion of the bankrupt's estate at private sale, in which event he must keep an accurate account of each article sold and the price received therefor and to whom sold. (Orders XVIII.)

Sale of property of bankrupt-Control of court thereover.— A court in bankruptcy does not possess the power to order in a summary way the sale of property, real or personal, although the same is claimed by the assignee, even though the title be in dispute, if the estate be in actual possession of a third person holding as owner and claiming absolute title to it, whether derived from the debtor before he was adjudged bankrupt or from another (Gifford et al. v. Helms et al., 19 N. B. R. 113; 98 U. S. 248); but it has power to order the sale of the incumbered property and the money arising therefrom brought into court to be distributed among the creditors holding the securities. (In re Salmons, 2 N. B. R. 19; 15 Pittsb. Leg. J. (O. S.) 541; Fed. Cas. 12268.) It may leave the purchasers to establish their titles whenever the occasions may arise. (In re Alden, 16 N. B. R. 39; 23 Int. Rev. Rec. 234, 282; 9 Chi. Leg. News, 346; 25 Pittsb. Leg. J. 4; Fed. Cas. 151.) The form of the order is sufficient that directs the sale of the right, title, etc., of the bankrupt, and it need not direct the sale of the right, title, etc., which the general assignee acquired by the decree of bankruptcy. (Smith v. Scholtz et al., 17 N. B. R. 520.) Appraisers will not be appointed to ascertain the value of the assets of an involuntary bankrupt before there has been proof of debts or appointment of an assignee. (In re Frederick, 3 N. B. R. 117; 3 Amer. Law T. Rep. Bankr. 71; 2 Chi. Leg. News, 139; 1 Amer. Law T. Rep. Bankr. 181; Fed. Cas. 5092.) A sale cannot be ordered by the court until the appointment of the assignee, as such a course would prevent the election given to the assignee to redeem the property pledged, to sell it subject to the lien, and to release the equity of redemption at an agreed price. (In re Grinnell & Co., 9 N. B. R. 29; 7 Ben. 42; 21 Pittsb. Leg. J. 82; Fed. Cas. 5830.) A sale by the marshal, as messenger, under a special order, prior to the appointment of an assignee, is to be considered as in the nature of a sale made by a provisional assignee. (In re Hitchings, 4 N. B. R. 125; Fed. Cas. 6542.) A petition to sell realty belonging to the bankrupt may be presented to the court by the assignee, but he may make such sale without any order of court. (In re McClellan, 1 N. B. R. 91; 1 Amer. Law T. Rep. Bankr. 48; Fed. Cas. 8694.) Where property is sold by the assignee without such order, the purchaser will be entitled to the rents and profits of the property from the day of sale, and not from the day of confirmation of the sale by the court. (Hall v. Scovel, 10 N. B. R. 295; Fed. Cas. 5945.) In a sale of real estate by the assignee, assuming that it is to be assimilated to a sale under a decree in equity silent as to the manner of sale, it cannot be attacked collaterally and held ab

solutely void because not made in parcels. (Smith v. Scholtz et al., 17 N. B. R. 520.) The assignee himself must sell the property, and the necessity for the employment of an auctioneer must be affirmatively shown or the auctioneer's charges will not be allowed the assignee by the court. (In re Sweet et al., 9 N. B. R. 48; 21 Pittsb. Leg. J. 82; Fed. Cas. 13688.) Where a party intending to bid at the assignee's sale and the assignee's solicitor agree that the bidder will let the solicitor have the property at a certain price without reference to the selling price, such agreement will not avoid the sale. (Citizens' Bank v. Ober, 13 N. B. R. 328; 1 Woods, 80; Fed. Cas. 2731.) A creditor has a right to call for an investigation into the conduct of the assignee in selling the property, even after the latter's account has been filed and approved. (In re Peabody, 16 N. B. R. 243; 9 Chi. Leg. News, 243; Fed. Cas. 10866.) A purchaser at a sale by the assignee stands on the same footing with a purchaser at an execution sale. He takes the estate of the bankrupt subject to all equities against it, whether he knows of them or not. (Steadman v. Taylor, 17 N. B. R. 283.)

Sale of incumbered realty.-A sale of incumbered land by the assignee, subject to the incumbrance, does not divest the lien of the incumbrance. (Assignee of Wicks & Co. v. Perkins, 13 N. B. R. 280; 1 Woods, 383; Fed. Cas. 17615.) Where property is incumbered it will be taken for granted that the assignee sold subject to incumbrances, but the lien creditor or creditors must be notified before the sale takes place. (Meeks v. Whatley, 10 N. B. R. 498.) The purchaser of property sold subject to alien by order of the court is estopped to deny the validity of the lien. (Bucknam v. Dunn et al., 16 N. B. R. 470; 2 Hask. 215; Fed. Cas. 2096.) If the interests of all parties demand it, the court will direct the assignee of a bankrupt corporation to sell its real estate discharged of all liens and incumbrances excepting existing and recorded mortgages. (In re National Iron Co., 8 N. B. R. 422; 10 Phila. 274; 30 Leg. Int. 272; 20 Pittsb. Leg. J. 208; Fed. Cas. 10045.) The court has the right to take possession of and sell mortgaged property free from the lien of the mortgage, without first satisfying it. (In re Kahley, 4 N. B. R. 124; 3 Chi. Leg. News, 85; 2 Leg. Gaz. 405; Fed. Cas. 7593; In re Barrow, 1 N. B. R. 125; 1 Amer. Law T. Rep. Bankr. 63; Fed. Cas. 1057.) In a sale of real estate discharged of liens, by the assignee, interest on such liens should be allowed to the date of the report of distribution. (In re Devore, 16 N. B. R. 56; 24 Pittsb. Leg. J. 185, 187; Fed. Cas. 3847.) A judgment creditor who does not perfect his lien by execution and levy is not entitled to the proceeds of the sale of the bankrupt's property by his assignee, free from incumbrances, as against a junior judgment creditor whose lien was perfected prior to the commencement of proceedings. (In re Mebane, 3 N. B. R. 91; Fed. Cas. 9380.) Where the assignee sells the bankrupt's real estate discharged of liens, and a judgment, acting as a lien upon the property at the time the order for sale was made, expires the day before


the sale, it should be allowed its proper portion of the fund for distribution. (Davis v. Assignee, etc., 19 N. B. R. 61; 7 Reporter, 484; 36 Leg. Int. 176; 26 Pittsb. Leg. T. 115; Fed. Cas. 3654.) The assignee may, if to the interest of the estate, relieve the property from the lien by discharging the incumbrance, or he may agree with the creditors as to the value of the property, or it may be ascertained by a sale under the direction of the court, when the creditors shall only be such for the balance. (Reed v. Bullington, 11 N. B. R. 408.) Where the assignee applies to the court for leave to sell real estate subject to specified incumbrances, and an order is made, and after the sale the assignee reports that the property has been sold free of all incumbrances other than those specified, the holder of a judgment which is a lien against the property, and who was not a party to any of the proceedings, is not debarred from enforcing his lien, as the court confirms the sale and not the assignee's report. (In re McGilton et al., 7 N. B. R. 294; 3 Biss. 144; 29 Leg. Int. 332; 5 Chi. Leg. News, 1; 20 Pittsb. Leg. J. 29; Fed. Cas. 8798.)

Where a levy is not made at the date of the bankruptcy, the title by operation of law is vested in the assignee, who must make the sale and deposit the proceeds subject to whatever claims may be made upon it. (Pennington v. Sale & Phelan et al., 1 N. B. R. 157; 2 Amer. Law Rev. 776; Fed. Cas. 10939.) The assignee may apply to have a lien ascertained and liquidated, or for an order directing the sale of the property held as security for any debt existing or provable under the bankruptcy, as the most correct means of ascertaining its true value, and may from the proceeds pay to the creditor the amount of his debts covered by the security. (In re Stewart, 1 N. B. R. 42; 1 Amer. Law T. Rep. Bankr. 16; 15 Pittsb. Leg. J. 222; Fed. Cas. 13418.) Where the assignee sells mortgaged realty, and thereafter the transferee of the mortgaged notes, having had the mortgage rendered executory, files a petition claiming the property, he is entitled thereto. (Ray v. Brigham et al., 12 N. B. R. 145, U. S. S. C.) A mortgagee in possession being entitled to retain all property upon which his mortgage is valid, on a sale of such property by order of the court, he should be charged only with the reasonable expenses of the sale of such property, and not with any portion of the costs in bankruptcy. (In re Eldridge, 4 N. B. R. 162; 2 Biss. 362; Fed. Cas. 4330.) Where the property of a bankrupt corporation is sold at the petition of the assignee, under a mortgage, and the proceeds of the sale are not sufficient to pay the mortgaged debt, only the actual costs of the sale are chargeable upon the proceeds thereof. (In re Blue Ridge Railroad Co., 13 N. B. R. 315; 2 Hughes, 224; 8 Chi. Leg, News, 290; 4 Amer. Law Rec. 456; Fed. Cas. 1570.) Where a former assignee of a bankrupt, a second mortgagee, is made a defendant in a suit for the foreclosure of a first mortgage, and dies after entry of a decree pro confesso, but before final decree, and his successor is not made a party to the suit, the second mortgage, and the right of the assignee to redeem, are not affected by a sale of the mortgaged premises.

(Avery, Ass., etc. v. Ryerson et al., 16 N. B. R. 289.) Where a mortgagee fails to secure an equitable lien by bill, and the appointment of a receiver of rents or profits of the mortgaged premises after a default, and the premises sell for less than his claim, at a sale by the mortgagor's assignee, he will only be entitled to a pro rata share on the deficiency of his claim of the bankrupt's assets. Profits of the mortgaged premises reduced to possession by the mortgagor's assignee prior to sale of the mortgaged premises are to be treated as assets, and the mortgagee cannot claim that a deficiency after sale on his mortgage shall be paid in preference to the claims of other creditors. (In re Snedaker, 4 N. B. R. 43.) The circuit court has jurisdiction to entertain a petition for relief from orders of the district court directing that the bankrupt's land shall be sold, and that the holder of the first lien, a deed of trust, shall be purchaser, the trust bond to be accepted at par in part payment. (In re Alexander, 3 N. B. R. 6; Chase, 295; 8 Amer. Law Reg. (U. S.) 423; 2 Amer. Law T. Rep. Bankr. 81; 16 Pittsb. Leg. J. 91; 2 Balt. Law Trans. 759; Fed. Cas. 160.)

Exempt property.- A bankrupt to whom an exemption of real estate to be used as a homestead has been allotted, is vested, under the exemption laws of Ohio, with only a qualified interest therein so long as he uses it as a homestead for his family, with reversion in the assignee, which may be sold by the assignee subject to the bankrupt's interest therein. (In re Watson, 2 N. B. R. 174; 2 Amer. Law T. Rep. Bankr. 93; Fed. Cas. 17271.)

Dower. A sale by the assignee of realty of a bankrupt whose wife claims her dower therein does not divest the dower. (Lazaer v. Porter, Ass., 18 N. B. R. 549; sec. 5044, R. S. For contra, see In re Kelly v. Strange, 3 N. B. R. 2; Fed. Cas. 7676.) A wife's right of dower, where she joins in a mortgage of her husband's property, can be barred only by sale of the mortgaged property under a power of sale contained in the mortgage, or by a decree of a court of competent jurisdiction where she can be made a party to proceedings, a sale in bankruptcy proceedings being ineffectual for the purpose. (In re George A. Bartenbach, 11 N. B. R. 61; 2 Amer. Law T. Rep. (N. S.) 33; Fed. Cas. 1068.)

The sale in general.- Where the assignee is not made a party to partition proceedings of real estate, he may sell the bankrupt's undivided interest therein. (Smith v. Scholtz et al., 17 N. B. R. 520.) Where one not in debt conveys realty by deed absolute on its face, but in reality in trust to his wife, and afterwards is adjudged bankrupt, until which time he remains in possession of the realty, which is sold by the assignee, and thereafter the deed is recorded, a bill to set aside the sale will be dismissed, as the omission to record is a fraud upon creditors. (Barker v. Smith et al., 12 N. B. R. 474; 2 Woods, 87; 2 Amer. Law T. Rep. (N. S.) 386.) After a bankrupt's discharge an order will not be issued directing the assignee to sell and convey real estate to which the bankrupt did

not have a legal title at the date of adjudication, and which was not included in his schedule of assets, to satisfy an alleged lien created by a judgment recovered prior to adjudication. (In re Dean, 3 N. B. R. 188; Fed. Cas. 3701.)

Sale of personalty.- Where a levy is made by a sheriff on goods of the bankrupt after the date of his filing a petition in bankruptcy, the assignee must make sale thereof and deposit the proceeds of the goods subject to whatever claims may be determined by the court to be upon them. (Pennington v. Sale & Phelan et al., 1 N. B. R. 157; 2 Amer. Law Rev. 776; Fed. Cas. 10939.) In a sale by the marshal as messenger, under a special order of the court, prior to the appointment of an assignee, of the lease, good-will and fixtures of a store, only such things (or their accessories) as are actually or constructively fastened to the freehold will pass to the purchaser of fixtures; and such a purchaser may make claim upon the funds in the hands of the assignee for the sale of such articles as were properly included under the sale of the fixtures and afterwards resold as movables. (In re Hitchings, 4 N. B. R. 125; Fed. Cas. 6542.) Property which has been mortgaged by a bankrupt may be sold by the assignee under the direction of the court discharged of the incumbrances, the lien being remitted to the proceeds of sale, provided the substantial rights of the mortgagee will not be thereby injuriously affected, and the assignee may, for the purpose of such sale, expend money upon finishing chattels which he finds in an incomplete or unfinished condition. (Foster, Ass., v. Ames, 2 N. B. R. 147; 1 Lowell, 313; 2 Amer. Law T. Rep. Bankr. 65; Fed. Cas. 4965.) If bank stock be transferred as security for the payment of money loaned, the delivery of possession is complete, the only defect in the title being the non-transfer of the stock on the books of the bank issuing the stock, and the bank can become entitled to the stock only by satisfying the debt which has been secured by the transfer, notwithstanding the fact that it may have purchased a right to them from the assignee. (Second National Bank of Louisville v. National State Bank of Newark, 11 N. B. R. 49.) Where one holds a lien as security of the bankrupt on his letters patent, the court may order the letters patent to be sold jointly by the assignee and the holder of the lien and the proceeds obtained deposited pending settlement of suit. (In re Columbian Metal Works, 3 N. B. R. 18; Fed. Cas. 3039.) The amount of premiums paid by a husband after his bankruptcy on life insurance policies for the benefit of his wife may be claimed by his creditors, and the claim may be sold for cash and become a lien on the policy, collectible when the policy shall be paid. (In re Bear & Steinberg, 11 N. B. R. 46; 1 Cent. Law J. 607; Fed. Cas. 1178.) Where one of several, formerly partners, is adjudicated a bankrupt and receives his discharge, and the assignee sells all the assets to the bankrupt, who afterwards brings an action on a claim so purchased, the statute of limitations runs from the time of adjudication. (Blackwell v. Claywell et

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