Gambar halaman
PDF
ePub

bankrupt act was given power over arrangements for the sale of property.

It is often for the advantage of the estate that property should be sold at once without waiting for notice to be given. It has been held that the good-will of a business may be sold as being perishable and subject to loss in value. This agrees with a New Jersey case, where the court ordered the sale of the road-bed of a railroad without waiting for the termination of a litigation. The statute gave power to do this to prevent deterioration in value. Form 46 prescribes the allegations in a petition for sale of perishable property.

There are statutes in many states allowing attached property to be sold if it is perishable. These statutes apply usually only to articles which are likely to decay.3 But some of them allow a sale if there is risk of loss in value. Under such statutes it has been held that fancy goods are perishable,* and horses and carriages also.5 Where the phrase " perishable property" is used in a bill of lading or policy of insurance, it has the more restricted meaning."

The trustee must sell property at public auction unless otherwise ordered. He should petition the referee for authority to sell real estate at auction. After ten days' notice to creditors and a hearing, the referee may order the sale. The trustee must keep an account of each parcel sold with the price and the name of the buyer; the account is to be filed with the referee. 9

There is no provision for a petition for leave to sell personalty, but the trustee cannot sell such property without leave

1 Re Great Round World Pub. Co., lard v. Hall, 24 Ala. 209. See Steele v. Wyatt, 23 Ala. 764; Dugans v. Living

1 N. B. N. 130.

2 Middleton v. N. J. R. R., 26 N. J. ston, 15 Mo. 230.

Eq. 269.

3 Webster v. Peck, 31 Conn. 495; Henisler v. Friedman, 5 Pa. L. J. Rep. 147; Fisk v. Spring, 25 Hun, 367; 1 Shinn, Attachment, § 262.

4 Crocker v. Baker, 18 Pick. 407; Schumann v. Davis, 26 Abb. N. C. 125. 5 Jackson v. Colcord, 114 Mass. 60; Jackson v. Kimball, 121 Mass. 204; Mil

6 Robinson v. Comm. Ins. Co., 3 Sumn. 220, Fed. Cas. No. 11,949; Astor v. Union Ins. Co., 7 Cow. 202; Williams v. Bangor Ins. Co., 16 Maine, 207; Illinois Central R. R. v. McClellan, 54 Ill. 58.

7 Rule XVIII. 1.
8 Form 42.
9 Ib.

1

of the referee for less than seventy-five per cent of its appraised value. The proper practice would, therefore, seem to be to petition the referee for leave to sell personal property at auction. Notice should be given to creditors and the other details arranged in the same way as in a sale of real estate.

A trustee may be authorized to sell any part of the bankrupt's estate at private sale.2 The terms of the rule which allows this seem to refer only to personal estate, but as there is no prohibition of a private sale of real estate, the same principles would apply to a sale of land. In the petition for private sale the trustee should set forth his reasons for thinking it advantageous. Notice must be given and an account kept by the trustee as in other sales. Rule XVIII. and Form 45 apply only to the sale of a specified portion of the estate, but if a case should ever arise where the whole estate might be sold privately, the court would have power to order it. No harm could come from such an order, because all creditors have notice and may object if they desire. Such an order would not be made against the wishes of a majority of creditors.

If the trustee wishes to redeem any part of the estate from an incumbrance he may petition therefor, and after notice to creditors the court may order the trustee to discharge the property from the lien. The petition should describe the property and its value and state the nature of the lien. 5

6

The trustee may also on proper petition after notice be ordered to sell property subject to incumbrances, or it may be sold free from incumbrances. 7

After-acquired property does not vest in the trustee. 8

The provision of paragraph e is merely declaratory of the

1 Act of 1898, § 70 b.

2 Rule XVIII. 2.

3 Form 45.

4 Rule XXVIII., Form 43.

5 Form 43. It may be noted here that although the Form is drawn to cover only the petition of a trustee, a creditor or the bankrupt himself may

file a petition for redemption. See

Rule XXVIII.

6 Form 44.

7 Re Pittelkow, 92 Fed. Rep. 901, 1 N. B. N. 234 ; Re Worland, 92 Fed. Rep.

893.

8 See Re Smith, 1 N. B. N. 136. See ante, § 366.

law and has not changed it or added any new power. The trustee could always set aside transactions which any creditor could avoid.1

[ocr errors]

§ 534. Effect of Bankrupt Act on Proceedings under State Laws. a. This act shall go into full force and effect upon its passage: Provided, however, That no petition for voluntary bankruptcy shall be filed within one month of the passage thereof, and no petition for involuntary bankruptcy shall be filed within four months of the passage thereof.

b. Proceedings commenced under State insolvency laws before the passage of this Act shall not be affected by it.

Approved July 1, 1898.

State insolvent laws were suspended on the day the act went into effect, because the proviso that all proceedings begun under such laws before that time should be valid denied by implication the validity of proceedings begun afterward.2 And so was an assignment law whose scope was so broad as to be practically an insolvent law. But a law allowing the appointment of a receiver of an insolvent corporation is not suspended, nor is a law allowing proceedings for appointing a receiver supplementary to execution. The phraseology of former bankrupt acts was different in this respect and the decisions on the point were that state laws were not suspended till proceedings in bankruptcy could be begun.

1 Supra, § 296.

2 Parmenter Mfg. Co. v. Hamilton, 172 Mass. 178; Blake v. Francis, 89 Fed. Rep. 691; Re Gutwillig, 90 Fed. Rep. 475; Re Bruss-Ritter Co., 90 Fed. Rep. 651; Re Smith, 92 Fed. Rep. 135; Re Etheridge Furniture Co., 92 Fed. Rep. 329, 1 N. B. N. 139; Re McKee,

1 N. B. N. 139. Devlin v. Helliwell, 1 N. B. N. 41, contra.

3 Re Curtis, 91 Fed. Rep. 737; Re Smith, 92 Fed. Rep. 135.

4 State v. Superior Court, 56 Pac. Rep. 35 (Wash.).

5 Re Meyers, 1 N. B. N. 293.
Supra, § 13.

An act of bankruptcy committed before the time when a petition may be filed against a debtor may be taken advantage of by creditors when the time for filing the petition arrives.1 If a debtor has committed an act of bankruptcy by suffering judgment in a state court before November 1, 1898, the district court will enjoin a sale of his property under power of the state court until the creditors can file a petition; 2 but the state court itself will not stop such a sale unless enjoined.3

Proceedings begun under state laws before the passage of the act are not affected by it. These cases may be wound up in the state courts precisely as if the act had not been passed.

1 Trader's Bank ». Campbell, 14 Wall. 87; Re Bruss-Ritter Co., 90 Fed. Rep. 651.

2 Blake v. Francis, 89 Fed. Rep. 691. 3 Vietor v. Lewis, 24 Misc. Rep. 515. 4 Sneider v. Simon, 1 N. B. N. 12.

« SebelumnyaLanjutkan »