proval of the court for less than seventy-five per centum of its appraised value. 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. 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. 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. f. Upon the confirmation of a composition offered by a bankrupt, the title to his property shall thereupon revest in him. The title of the trustee usually dates from an earlier time than that prescribed by this section. In England the title relates back for a considerable time.1 Under the Act of 1867 the commencement of proceedings was the limit.2 Section 3 of the Act of 18413 vested the bankrupt's property in the trustee as of the date of the decree adjudging the debtor a bankrupt. The limit is the same now. It was held in several cases under the Act of 1841 that the 1 Supra, § 297. 2 § 14, 14 Stats. 522, R. S. § 5044. 8 5 Stats. 442. 1 property of the debtor at the time of filing the petition went to the trustee, though there were many decisions to the contrary. Whatever may have been the proper rule under that act, it is clear that it was the intention of Congress that the trustee's title should at present not relate farther back than the adjudication. The difference in phraseology between the Act of 1898 and that of 1867 seems conclusive on this point. 3 If there be an appeal on the question of adjudication, the trustee's title will date from the time that the case was decided on appeal. In such a case the rights of innocent third parties taking under the bankrupt may have accrued. This will interfere with the trustee in his administration of the estate. 4 There is no doubt that the trustee is vested with the title of the bankrupt as of the date of the adjudication. The documents of property owned at this time, the interests in patents, copyrights and trade-marks and the powers possessed by the bankrupt at this time pass to the trustee. Clause 5 seems inconsistent with the rest of paragraph a in establishing the time of filing the petition as the date at which the property passes. But this clause should be construed as a description of what property passes rather than as establishing the date of passage, since that date is fixed by the first part of the paragraph. This is the only way of construing the whole paragraph consistently. Each of the clauses 1 to 6 comprises a different kind of property or interest in property. Clause 5 is intended also as a description of a certain kind of property and does not qualify the time of vesting. The form of paragraph a shows that this is the proper construction. To hold otherwise would effect a repeal of one of the chief provisions of 70 by the terms of a subdivision of that section. 1 Ex parte Foster, 2 Story, 131, Fed. Cas. No. 4960; Ex parte Newhall, 2 Story, 360, Fed. Cas. 10,159; Ex parte Waddell, 1 N. Y. Leg. Obs. 53, Fed. Cas. No. 17,027; Re Rust, 1 N. Y. Leg. Obs. 326, Fed. Cas. 12,171. 2 Downer v. Brackett, 5 Law Rep. 392, Fed. Cas. No. 4043; Anon. 1 Pa. L. J. Rep. 121, Fed. Cas. No. 467; Miller v. Black, 1 Pa. St. 420; Berthelon v. Betts, 4 Hill, 577, and cases cited in Bump, Bankruptcy, 10th ed. 487, 11th ed. 336. 3 Act of 1898, § 1 (2); supra, § 464. 4 See supra, § 297. 5 Act of 1898, § 70 a (1), (2), (3). A learned author1 suggests that the trustee's title relates to the adjudication, but that only property which the bankrupt had owned at the time of the petition will pass. This suggestion does not seem consistent with the first part of paragraph a, by the terms of which all documents relating to property, all patents, copyrights and trade-marks and all powers which the bankrupt owned at the time of the adjudication pass to the trustee, no matter when they were acquired. The trustee is vested by § 70 with the title of the bankrupt." This must not be understood to mean that he gets merely the rights of the bankrupt. In that case he would have no right to the property transferred in fraud of creditors and the provisions of clause 4 would be nugatory. This section resembles the Act of 1841 in not requiring an assignment to vest the bankrupt's property in the trustee." The Act of 1867 prescribed an assignment.3 Property which is exempt does not pass to the trustee and it makes no difference that the debtor has waived his exemption. 4 The rule prescribed by clause 2 has been usual in bankrupt laws. See $$ 318 et seq. Clause 3 has changed the former law. Such a power is not property and was held not to pass to the trustee. Several statutes have included these powers. 6 Clause 4 contains a provision common in bankrupt laws. The trustee representing the creditors would have this right without any statutory enactment. It has been held that this clause applies also to transfers which are not fraudulent in the ordinary sense but which tend to defeat or delay the act.8 Clause 5 resembles a provision of the insolvent law of Massachusetts which is now contained in § 46 of chapter 157 1 See Collier, Bankruptcy, 404 et seq. 2 Oakey v. Bennett, 11 How. 33, 45; Commercial Bank v. Buckner, 20 How. 108. 8 § 14, 14 Stats. 522, R. S. § 5044. B. N. 142. See supra, § 469. 5 Supra, § 330. 6 Ib. 7 Supra, § 315. 8 Re Gutwillig, 90 Fed. Rep. 475. See Davis v. Bohle, 92 Fed. Rep. 325, 1 N. B. N. 216. of the Public Statutes of Massachusetts. "The assignment shall vest in the assignee all the property of the debtor, real and personal, which he could have lawfully sold, assigned or conveyed, or which might have been taken on execution upon a judgment against him. There was no such provision as this in the Act of 1867.2 The trustee will get some rights under this clause which he did not have under the Act of 1867. Thus he will have a better title than a purchaser from the bankrupt holding under an unrecorded chattel mortgage, because such chattels can be taken on execution, while under the Act of 1867 the trustee took only the debtor's title. And the trustee will take real estate which had been attached by a creditor of the bankrupt and sold subject to the incumbrance. 4 In Massachusetts, property held in trust by the debtor does not pass to the assignee because it is not "property of the debtor. " 7 This is the only just rule and has been the law under all bankrupt acts. 8 The courts of Massachusetts refused to extend the decision in Bingham v. Jordan to the case of an unrecorded deed of land, on the ground that in this case also the land was no longer the property of the debtor. 10 It may be noted here that in Massachusetts a purchaser from a debtor after a petition has been filed gets no title as against the assignee. This case, however, is not strictly an authority, because under the Massachusetts insolvent law the assignee's title relates to the first publication of the warrant. 12 If the person taking from a bankrupt after the adjudication. knew of the bankruptcy, the transfer might be set aside on the ground of a preference. 13 11 1 Pub. Stats. c. 157 § 46. 2 Ex parte Dalby, 1 Lowell, 431, Fed. Cas. No. 3540; Dugan v. Nichols, 125 Mass. 43, 45. 3 Bingham v. Jordan, 1 Allen, 373. 4 See cases cited in Bingham v. Jordan, supra. 5 Ex parte Dalby, 1 Lowell, 431, Fed. Cas. No. 3540; supra, § 309. 6 Ex parte Ames, 1 Lowell, 561,568, Fed. Cas. No. 323. See supra, § 337. 7 Audenried v. Betteley, 5 Allen, 382; Holmes v. Winchester, 133 Mass. 140; Low v. Welch, 139 Mass. 33. 8 Supra, § 311. 91 Allen, 373. 10 Smythe v. Sprague, 149 Mass. 310. See supra, § 309. 11 Palmer v. Jordan, 163 Mass. 350. 12 Pub. Stats. c. 157, § 46. 13 Ex parte Palmer, 10 Morrell, 252. If a bankrupt has an insurance policy payable to himself, it will pass to his trustee unless he pays the surrender value of it. And this will be the case even in a state where such policies are exempt, since the bankrupt law is paramount and its provisions on this point are explicit. But a policy of insurance payable to the wife or children of the insured does not come within the terms of the act.2 The purpose of the enactment was to prevent a fraudulent disposition of money to defeat creditors. 3 By clause 6 a cause of action in tort is assignable if property rights are involved. This has been the usual rule. 4 A personal action, such as an action of slander or libel or an action for personal injuries, does not pass to the trustee.5 Nor does an action for malicious prosecution and false imprisonment. 6 Whether an action for slander of title would pass might be doubtful, but as a right to property is involved, the trustee ought to be allowed to prosecute it. Paragraph b provides for the appointment of appraisers to value the estate of a bankrupt. The form of oath to be taken by them and of their report is prescribed by Form 13. Creditors are by § 58 entitled to ten days' notice of all sales unless they waive notice in writing. An exception is made by Rule XVIII., which provides that perishable estate, on which there will be a loss if it be not sold at once, may, on petition of a bankrupt, creditor, receiver or trustee, be ordered to be sold without notice. At first sight this rule seems inconsistent with the Act of 1898. But it may be said. that a court of bankruptcy would have power under the wide · provisions of § 2 to order such a sale if it were clearly for the interest of the estate. If this is true, the rule is valid. Judge John Lowell held that the court might dispense with notice of a sale by auction although § 4 of the act of June 22, 1874, required it, because the court by other parts of the 7 1 Re Lange, 91 Fed. Rep. 361, 1 N. B. N. 60. 2 Shiras, J., in the case last cited. 8 Ib. 4 Supra, § 303. 5 Supra, § 325. 6 Re Haensell, 91 Fed. Rep. 355. 7 Re Bailey, District Court for Mass April, 1875; not reported. |