Aetna Life Ins. Co. v. Leonard
| Decision Date | 04 April 1911 |
| Docket Number | 2,096. |
| Parties | AETNA LIFE INS. CO. et al. v. LEONARD et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. P Hall and E. W. Sutherlin (G. W. Jack and W. A. Mabry, on the brief), for appellants.
J. D Wilkinson and Leon R. Smith (N. C. Blanchard, on the brief) for appellees.
Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.
From the record before us, containing parts of the proceedings below, it appears that A. H. Leonard, by a consent order, was appointed receiver of four corporations-- the Ozone Lumber Company, Limited, and three others. The property of the corporations has been sold and the proceeds distributed, and no objections are urged to anything that has been done except on one point. The receiver was allowed $25,000, the attorney for the receiver $15,000, and the special master $2,000, and various other expenses of the receivership were allowed and paid. The property sold for a large sum, about $400,000. Excluding several special properties that were sold separately, so as to preserve the particular liens on the same, the property of the Ozone Lumber Company, Limited, sold for $375,000. This amount being divided in proportion to the appraisement, the timber or mortgaged property realized $290,000; the other fund, or unmortgaged property, $85,000.
The lien or mortgages of the Ozone Lumber Company, Limited applied only upon the timber. The other property was unincumbered save for some special liens. Out of the fund derived from the timber, William Edenborn, who held the vendor's lien on the timber, was paid $189,050 in full of his privileged claim. The claims of the other interveners arising out of the mortgage indebtedness alone amounted to $131,450, and, as the proceeds of the sale of the mortgaged property (the timber) was not sufficient to pay their second mortgage, they were paid only $96,509, becoming ordinary creditors for the balance, $34,941.
No objections are made to these allowances, nor to any item of expenses, but the sole question relates to an apportionment of the expenses and taxes. The objection can be best shown by the following, which is the only assignment of error:
'The court erred in refusing to charge the mortgaged property of the Ozone plant with its proportion of the taxes and of the costs of the receivership, including the fees of the receiver and of the attorneys, which were based largely upon the amount of the...
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...Williams' Estate, 156 F. 934 (C.C.A. 9); Seaboard Nat. Bank v. Rogers Milk Products Co., 21 F.2d 414, 417 (C.C.A. 2); Aetna Life Ins. Co. v. Leonard, 186 F. 148 (C.C.A. 5). The amendment of 1910 to section 48d of the Bankruptcy Act (11 U.S.C.A. § 76) did not affect this rule. Gugel v. New O......
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