Year: 1872

Sheriff Against Assignee-DecfsiOu of MIR


Justice Bradley.


Mr.. Justice Bradley held, in the following


opinion, which we report condensed, thai


the proceedings of sheriff who levied exc


eution upon property before, and went on


to cOnsummate it after, the commencement


of proceedings in bankruptcy, were valid.


The practice has heretofore been opposite


to this ruling, which, if maintained, can not


but be regarded in any other light than as


an important judicial procedure:


Charles w. Goddard, assignee of Francis


M. Fisk, bankrupt, VS.. Joseph d. Weaver


The assignee Cf Fisk, bankrupt, brought


a bill in chancery to set aside the sale of


certain property, made under a mortgage


held by Weaver by the Sheriff of Orleans


The sale was advertised on the twenty
seventh November, 1871, and Fisk fled his
petition to be declared a bankrupt on the


twenty-seventh of December, 1871, and the
sale took place on the sixth of January,
1872, Weaver becoming the purchaser for
$500. The bill also asks for an Injunction
to prevent Weaver from intermeddling with
the property.


The first question arising upon the case
is whether as mere matter Of law all pro-
ceedings of the sheriff taken and had after
the petition in bankruptcy was filed, were
null and void" / cannot agree to the pro-
position that they are null because repug-
nant to that exclusive control of the bank
rupt's property vested in the bankrupt court
l cannot subscribe to the doctrine that the
bankrupt's petition renders an honest exc
cutiOn levied upon his property before the
filing of his petition renders this execution
and all proceedings under it null and void.


The assignee of a bankrupt is not the as
signee of his creditors, nor of all the judg-
ments, executions, liens and mortgages out
standing against his property. He takes
only the bankrupt's interest in property,
nor has he right, title or interest which
other parties have therein: nor any control
over the same further than is given ex-
pressly by the bankrupt act as auxiliary
for the preservation of the bankrupt's in
terest for the benefit of his general credit
Ors. 1t would be absurd to contend that
the assignee becomes ipSO factO seized IN
entirety as trustee of every article of prop
erty in which the bankrupt has any inter
est or share. This would give him the
kings prerOgative, which brooks not a di-
vided domain in property in common with
subject. The assignee succeeding to the
bankrupt's possession of property, subject
to certain fixed laws, may discharge them
and sell the property, or he might dispose
of it before discharge of the liens. 1t is
not necessary to decide in all cases whether
he could do this


! know of no authority which the assignee
has to take property possessed by a bank
rupJ, except as bailee, out of the sheriffs
hands without paying the debt or seeking
the aid OF courts sitting in bankruptcy, and
II the sheriff proceeds to SELL am unable
to see anything in the bankrupt act which
renders void his acts done after the com
of proceedings in bankruptcy.


The possession of the sheriff is lawful, He
has species of property in the thing; his
right to sell extends to the entire interest
Of the debtor, and no assignment of that in
5erest can divert the right of the sheriff


The court will interfere in case the exer-
Use of the right of the sheriff, if its exercise
would materially affect the interest of the |
general creditors When divers persons |
nave divers interests in the same thing, |
neither has right to do what will iniure |
he other, and each must submit to judicial |
for the protection of other inter |
sts Upon this principle courts are author |
zed tOinterfere with rights otherwise lawful |
n regard to property situated as | have sup |
,osed. But l can not regard, while having |
10 doubt OF the authority of the court to
tay sherit7s proceedings in such a case,
md even to set aside the sale, | can |
lot regard the sherif7s acts as void in
aw, nor as vOidable or subject TO control. |
kept upon cause shown in a court having
bankruptcy Jurisdiction.


The bankrupt court is the appropriate
tribunal to investigate where any question
) made as to the validity of the Judgment
nd proceedings under it may be re-
trained. But in the proceedings before
: no question is made as to the bona fides
f the act in which executory process is
ued. The answer disposes of every charge
bad faith


! do not think 1 ought to appoint re-
elver or to issue an injunction. Hence the
notion is refused.


l will allow the assignee TO pay the de-
demand, and take the property at
ny time within three months from date, if
e really thinks the same is worth more
nan the mortgage debt, interest and costs.
Order issued in accordance with the de-
sion and the amendment.