Abbott v. Stearns

• Decision Date: 03 March 1885
• Citation: 139 Mass. 168,29 N.E. 379
• Parties: ABBOTT v. STEARNS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

139 Mass. 168

29 N.E. 379

ABBOTT

v.STEARNS et al.¹

Supreme Judicial Court of Massachusetts, Middlesex.

March 3, 1885.

Petition by George C. Abbott, assignee, against Catherine E. Stearns and others, to revise a decree of the court of insolvency. Petition dismissed.

E.O. Cooke, for petitioner.

F.R. Hall, for respondents.

FIELD, J.

This is a petition to this court, under Pub.St. c. 157, § 15, to revise a decree of the court of insolvency. An application was made to that court by the lessors, alleging that a benefit had accrued to the estate by the use of the leasehold premises for the storage, sale, and delivery of the goods of the insolvent debtor, and praying that the assignee be ordered to pay the petitioners a reasonable sum for the use and occupation of the premises. Before the statute of 1879, (chapter 245, § 1,) the lessor might prove his claim against the estate of the lessee in insolvency for rent which had by the terms of the lease become payable before the time of the first publication of the notice of issuing the warrant; the subsequently accruing rent could not be proved; and the liability of the lessee therefor on his covenants to pay rent was not discharged, if he obtained his discharge in insolvency. There was no provision in the statutes for apportioning the rent between two rent days. The assignee in insolvency, although the lessee's title vested in him by operation of law, did not become chargeable with rent unless he accepted the lease; if he accepted the lease, he became personally liable while he held the leasehold estate. Hoyt v. Stoddard, 2 Allen, 442;Com. v. Insurance Co., 115 Mass. 278;Deane v. Caldwell, 127 Mass. 242;Mason v. Smith, 131 Mass. 510; Ex parte Faxon, 1 Low. 404; Ex parte Houghton, Id. 554; Magnay v. Edwards, 13 C.B. 479. It is unnecessary to determine in this case whether the acts of the assignee in occupying or intermeddling with the leasehold estate would have been held before this statute to indicate an election to accept the lease, or to amount to an acceptance of it, because this is not an action at law against the assignee, and the assignee, pursuant to the statute, has disclaimed the lease. Under the bankruptcy statutes of the United States, which contained no provisions similar to those of the statute of 1879, (chapter 245, § 1,) when the marshal or assignee had used leasehold premises of the bankrupt for the benefit of the estate, a reasonable sum was ordered to be paid to the lessor by the assignee out of the assets of the estate, as compensation, and was credited to the assignee as a part of the expenses of administration. Ex parte Faxon, ubi supra; In re Walton, 1 N.B.R. 557; In re Appold, Id. 621; In re Merrifield, 3 N.B.R. 98; In re Rose, Id. 265; In re Webb, 6 N.B.R. 302;In re Breck, 12 N.B.R. 215. The statute of 1879, (chapter 245, § 1,) now incorporated in Pub.St. c. 157, § 26, was plainly taken, with some modifications, from the English bankruptcy act of 1869, (32 & 33 Vict.) c. 71, § 23. The provisions of our statute are that, if the assignee “elects to disclaim, such lease or agreement in writing shall thereupon be deemed to have been surrendered as of that day on which said disclaimer was so filed. And the debtor, provided he obtains his discharge in insolvency, shall be discharged from all liability under or by reason of said lease or agreement in writing, whether the assignee does or does not disclaim the same as aforesaid; and the lessor, or those having his estate in the premises, may prove such damages, if any, as are caused by such surrender, as a debt against the estate of the debtor.” In the case at bar we infer that the rent was payable on the first of each month. The date of the first publication of the warrant was August 8, 1883, and the date of the disclaimer, October 27, 1883; so that two months' rent had meanwhile accrued. Under the English bankruptcy act of 1869, the disclaimer operated as a surrender as of the date of the order of adjudication; and, pursuant to a general rule of the court that a trustee in bankruptcy should not execute a disclaimer of leasehold property without the leave of the court, it was held that, if the trustee had been in beneficial occupation of the property, he might, if the circumstances equitably required it, be decreed to make compensation to the landlord as a condition of granting leave to disclaim. Ex parte Ladbury, 17 Ch.Div. 532; Ex parte Isherwood, 22 Ch.Div. 384; Ex parte Izard, 23 Ch.Div. 115; Ex parte Arnal. 24 Ch.Div. 26.

One difficulty in construing our statute is that the disclaimer does not relate back to the first publication of the warrant, but takes effect as of the day on which it is filed, and the...