Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1913-01-04


| rupt on April %, 1870 and was then in
| possession of. the farm. The defendant
! qualified as trustee on May 10, and OF
| May % filed a petition for leave to sell
| real and personal property, which petition
was granted on June 6. On July s, the
| defendant took possession of the real and
! agent to hold possession, and care for the
/ property. On July 10. the defendant as
| trustee sold to the plaintiffs the standing
| grass on the premises, and gave them a
| price thereof, as follows:
| "Greenbush Me, July 10, 1910.
| Sold this day stumpage of hay on Scott
! farm called in town of Greenbush for
| consideration of forty s4O) dollars to be
paid within five days.
| G. A. CARNEY and b. r. WHEELER.
A. G.. AVERILL. Trustee.
Received payment in full of above.
A. G. AVERILL. Trustee
The plaintiffs undertook to cut the
but for the letter
bidding us on the place: said he would
: hold us for damages They notified the
defendant by telephone. and he thereupon
sent the plaintiffs writing, dated July
4, 1910, which reads as follows:
oldtown, Me. July a, 1910
To George Carney & b. r. Wheeler,
Greenbush, Me.
Gentlemen: This is to certify that l.
Albert G. Averill, trustee of Clarence
Scott Estate, bankrupt, have sold the
stumpage of the hay on the Scott farm in
the title to same in me, and ! did and
hereby do give good title to said Carney
& Wheeler and will warrant and defend
the same to them and Will stand by them
otherwise in this regard.
Yours very truly.
ALBERT G. AVERiLL4, Trustee;
+. : Get this hay as soon as poSs ibie,
as we talked, and it would be great
favor to me if YOU didn't show this pa
per to SCOTS attorney and his friends.
If you have the least doubt of my ability
10 soil a "a
title go to your own attorney. This other
crowd are only trying to bluff and to
bother me.
The plaintiffs, however, did not cut the
grass, but commenced this action against
the defendant as an individual. The de-
PENDANT pleaded the general issue with
brief statement that whatever he did IN
the premises. he did in the capacity oil,
and by force and virtue of his appoint
ment and qualification as trustee in bank,
ruptcy of the estate of Clarence Scott.
At the close of the evidence, the presiding
Justice ordered verdict for $40: The case
comes to this court on exceptions: IN"
plaintiffs claim that after the defendant
took possession of the farm but on the
same day, w. = Marshall, the mortgage.
went to the farm for the purpose OF
taking possession to secure the hay
crop: that he found the agents of the
defendant in possession, and gave them
notice TO quit, that he returned on the
following day and left notice which
'Greenbush. July s, 1910.
To whom it may concern;
This is to certify that |, Willie ; Mar
shall. in the presence of Mr.. and Mrs.
George Spencer and the undersigned,
have this day taken peaceful possession
of the so called Scott farm property both
personal and real. BY right of mort
WILLIE 5. MARSHALL.
Witnesses: ALFRED FOLSOM.
MAUDE NJ. FOLSOM
to-. IL ar he sold
grass to one Alfred Folsom. 1t appears
that before July a. conferences were
held in which all the parties interested
took part. and the advice OF the referee
in bankruptcy was sought. 1t further APP
pears that through fear of litigation on
the part of the plaintiffs, and because
did not care to bother with it. the grass
was not harvested. The mortgage re
turned the purchase price to Mr. Folsom,
and the latter foreclosed his mortgages
by publication.
The plaintiffs contend that the mort
4gagee had the right to take possession OF
the farm as against the trustee at any
time before the grass was cut, and thar
the license to sell under which the de-
PENDANT was acting, conferred no authori-
ty that the mortgagee was bound 10 re-
spect when the mortgagee took posses
sion for the purpose of harvesting the
hay and kept such possession.
The receipt and warranty We're admitted
against the objection of the defendant
ond exceptions Objection to their adj
mission was made, /, because each was
signed by the defendant in his official
capacity, while the acton Vas 6 9r9us bal
cause the warranty which was signed
four days later than the receipt was
without consideration.
We think the evidence was adnlsslnl n
tThey were original documents, executed
by the defendant in the transaction IN
question, and under well known fules
why the information they contain should
be withheld from the court.
Several of the remaining exceptions re-
late to one. question-that OF 34risoiet Tt,l
bankrupt was in possession OF the farm
at the date of adjudication Beng IN
possession, whatever interest he mao IN
the real and personal estate, ncludlhs
the growing crops. passed to and vested
Immediately in the trustee crosby VS..
Spear IS Me. SAL Jones on Mortgages
Vol. =, Sec. 1881.
II is admitted that the defendant was
acting under an order to sell issued by
| the court of which he was an officer inc
| sale was therefore judicial sale. In re
| Maloney, a b. r. 5o2; Savings Bank vs..
Alden 103 Me. 237.
| The defendant had authority to sell such
rights and interests as the bankrupt had.
He could sell no more. The plaintlil
| having knowledge of all the facts could
not expect to receive a greater interest
| than that conveyed by the sale OF July
10th. Roberts VS.. w. IL fiuSHtS NN+' "a
| Atlantic Reporter, S07. supreme Court,
kVermont- June 1912. :.
The rule of caVeat emptof preVais III
! bankruptcy sales as in all judicial sales
unless special direction otherwise rs
] made in the order of sale. \. b. K. Vol.
I TO- page 24O: Baker vs.. Nining, 30 Me. III.
| The warranty of title so called, was
not a special warranty in which the de-
| PENDANT assumed individual liability, IN
asmuch as the document contains no
| promise or undertaking imposing sucfi
| liability Like the receipt 1t was signed
| by the defendant in his otficlal capaeity,
! and having been 50 executed touf Gays
, later than the original sale without any
further consideration, no personal llablii-
ty is imposed on the defendant: "a ~yc
/ as, " hite VS.. Cakes, s. Me. 5ol, BroWii
VS. Lyford, 1903 Me. }62.
A trustee in bankruptcy is an ofhcer oil
+, the court, and cannot be subjected e
| cuts of this character without leave OF
| the bankruptcy court. "a Cyc. AL; same
| 1877; Jones on Mortgages Vol. Z, Sectioh
| 1921. 1t is so held even when the acton
8 brought upon paramount title' %
eye. All. :.
The defendant as trustee being then III
possession, and holding as such all the
1 rlgnrs and interests belonging TO tht
! bankrupt as of the date of ad1udlcation
had the right, and it was his duty undei
the order of the court whose agent ~
was, to sell the crops growing on tht
farm The fact that the plaintiffs tailed tt
cut the grass. and in consequence weft
losers in the transaction, creates no per