In re Brannon

• Decision Date: 20 February 1933
• Docket Number: No. 6476.,6476.
• Citation: 62 F.2d 959
• Parties: In re BRANNON et al. CITY OF DALLAS et al. v. RYAN et al.
• Court: U.S. Court of Appeals — Fifth Circuit

62 F.2d 959 (1933)

In re BRANNON et al. CITY OF DALLAS et al. v. RYAN et al.

No. 6476.

Circuit Court of Appeals, Fifth Circuit.

January 18, 1933.

Rehearing Denied February 20, 1933.

H. P. Kucera, Geo. K. Holland, R. G. Scurry, and Tom C. Clark, all of Dallas, Tex., and R. M. Rowland and R. E. Rouer, both of Ft. Worth, Tex., for appellants.

George Sergeant, of Dallas, Tex., for appellees.

Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.

SIBLEY, Circuit Judge.

Similar questions arising in the distribution of two estates in bankruptcy were dealt with in one judgment in the District Court, and by stipulation are reviewed in one appeal here. In Brannon's estate the trustee has $331.05 arising from the sale of personal property. Claims for wages earned within three months before bankruptcy, totalling $253.13, state and county taxes (1931) $56.42, and taxes of city of Dallas (1928, 1930, 1931) $51.12, and landlord's claim for rent $1,350 have been allowed and for each a lien is claimed under state statutes. In Bayer's estate the trustee has $785.49 arising from the sale of merchandise and fixtures, and there have been allowed claims for wages earned within thirteen weeks before bankruptcy aggregating $624, state and county taxes (1928, 1929, 1930, 1931) $395.08, taxes of city of Dallas (1929, 1930, 1931) $432.60, and a landlord's claim for rent $3,035.19. For these also liens are claimed under state statutes. The referee's ruling affirmed in the District Court was that section 64 of the Bankruptcy Act (11 USCA § 104) fixing priorities in the distribution of an estate in bankruptcy controlled; that the so-called liens for taxes, wages, and rent under the state law were really only priorities under those laws referred to in section 64b (7) as amended in 1926, 11 USCA § 104 (b) (7), and were not liens preserved under section 67 (11 USCA § 107). Accordingly wages were held to be payable first, taxes next, and landlord's claims last. In re Brannon, 53 F.(2d) 401.

We reach a different conclusion. Section 64 gives the rule for paying out the money arising from the bankrupt's property which remains for general distribution after all special liens and incumbrances have been dealt with. City of Tampa v. Com. Bldg. Co. (C. C. A.) 54 F.(2d) 1057; In re Tresslar (D. C.) 20 F.(2d) 663; Polk County v. Burns (C. C. A.) 247 F. 399; Lott v. Salsbury (C. C. A.) 237 F. 191; In re Hosmer (D. C.) 233 F. 318; In re Rauch (D. C.) 226 F. 982. Before a dividend is made to general creditors the section requires payment in full of seven classes of claims, which briefly stated are: (1) Costs of preserving the estate; (2) advanced court costs; (3) cost of administration; (4) costs of litigation over composition; (5) wages earned within three months; (6) taxes; (7) debts to persons having a priority under state or federal law. These seven classes are not secured claims, i.e., such as had before bankruptcy a lien on the property of the bankrupt. The taxes in (6) are such as have no lien, as was the case in City of Richmond v. Bird, 249 U. S. 174, 39 S. Ct. 186, 63 L. Ed. 543, and New Jersey v. Anderson, 203 U. S. 483, 27 S. Ct. 137, 51 L. Ed. 284. The priorities in (7) are such preferences as may on insolvency be given by law to debts due the sovereign, to a debt due by a trustee, or for rent or the like, but unsecured by any previous lien. Typical examples are the priority given debts due the United States on insolvency by Rev. St. § 3466, 31 USCA § 191, excluded from section 64 by Davis v. Pringle, 268 U. S. 315, 45 S. Ct. 549, 69 L. Ed. 974, but put back by the amendment of 1926; and the priority given claims for materials by the Kentucky statute dealt with in Re Bennett (C. C. A.) 153 F. 673. Of the latter it is said in Globe Bank & Trust Co. v. Martin, 236 U. S. at page 302, 35 S. Ct. 377, 382, 59 L. Ed. 583: "Under our system of bankruptcy, and in the administration of assignments under state laws, there are certain persons, such as those furnishing material or labor, that, in certain specified ways, are given preference in the distribution of insolvent estates. It is a statutory lien of that kind with which the court dealt in Re Bennett." On the other hand, where the creditor before the bankruptcy has an established lien on the bankrupt's property which binds it as to third persons and which is not invalidated by the bankruptcy, he does not come under the operation of section 64. He is a secured creditor. Section 1 (23), 11 USCA § 1 (23). He cannot vote in the bankruptcy proceedings, nor have his claim counted in estimating number or amount of claims except for the unsecured balance, if any. Section 56b, 11 USCA § 92 (b). The court may estimate this balance and allow his claim to this extent for voting purposes. Section 57e, 11 USCA § 93 (e). Priority claims are in this respect treated the same way but are carefully distinguished from secured claims. Id. The security held by the secured creditor is to be converted into money or valued by agreement or arbitration or litigation and credited on the secured claim, and the balance, if any, stands for a dividend with other unsecured claims. Section 57a, 11 US CA § 93 (a). Section 67 deals with liens. Subsection (d) expressly preserves "liens given or accepted in good faith and not in contemplation of or in fraud upon the provisions of this title, and for a present consideration, which have been recorded according to law, if record thereof was necessary, * * * to the extent of such present consideration only." These words seem specially applicable to contract liens, and it has sometimes been said that only such are preserved thereby. But most statutory liens are but incidents which the law annexes to a contract. The section expressly invalidates (a) such liens as require record but have not been recorded; (c) those created by certain legal proceedings including attachments begun within four months before bankruptcy; (e) transfers in fraud of creditors made within four months of bankruptcy; (f) levies, judgments, and other liens obtained by legal proceedings within four months of bankruptcy. The section does not in terms either preserve or invalidate liens arising from legal proceedings which are more than four months old at bankruptcy, nor does it mention statutory liens not arising from legal proceedings unless they are to be included under section 67d. The view generally taken is that true liens, however arising, which are not expressly invalidated by the Bankruptcy Act, remain good, and the trustee takes his title under section 70 (11 USCA § 110) subject to them. This was held of a judgment lien more than four months old in Straton v. New, 283 U. S. 318, 51 S. Ct. 465, 75 L. Ed. 1060. And the general lien of a landlord under a Georgia statute, which dates only from the levy of a distress warrant upon particular property, was held not to be destroyed under section 67, although the levy was made within four days before bankruptcy. Henderson v. Mayer, 225 U. S. 631, 32 S. Ct. 699, 56 L. Ed. 1233. So as to a landlord's lien under the Virginia statute in Richmond v. Bird, 249 U. S. 174, 39 S. Ct. 186, 63 L. Ed. 543. Statutory liens annexed to contracts have been generally upheld in bankruptcy where the statutory prerequisites have been complied with. In this circuit alone may be noted the following cases: A seller's lien in Norris v. Trenholm (C. C. A.) 209 F. 827; a Louisiana rent lien in Fudickar v. Glenn (C. C. A.) 237 F. 808; a mechanic's lien in Morgan v. First National Bank (C. C. A.) 145 F. 466, and Eggleston v. Birmingham Purchasing Co. (C. C. A.) 15 F.(2d) 529; a Texas rent lien in Martin v. Orgain (C. C. A.) 174 F. 772, and In re McLaughlin (D. C.) 10 F.(2d) 810; a materialman's lien in Re Oconee Milling Co. (C. C. A.) 109 F. 866, and In re Georgia Handle Co. (C. C. A.) 109 F. 632. A tax lien was upheld in City of Tampa v. Commercial Building Co. (C. C. A.) 54 F. (2d) 1057, and In re Tresslar (D. C.) 20 F.(2d) 663. That lienors do not come within the distribution provisions of section 64 is also plain from the decisions that they do not have to contribute to the costs of the bankruptcy, which are the first items to be paid on a distribution under section 64, unless the lienor has invoked the aid of the court, nor then except as to the direct and necessary expense of preserving and realizing on his security. Gugel v. New Orleans Nat. Bank (C. C. A.) 239 F. 676; In re Williams' Estate (C. C. A.) 156 F. 934; In re Cutler & John (D. C.) 228 F. 771. We therefore think this case must be solved by ascertaining whether the present claimants had liens on the bankrupt's property, and by paying them in the order of their dignity as such.

The wage claimants had an inchoate lien under Rev. St. of Texas 1925, article 5483, but recording within thirty days is by article 5486 made necessary to fix and preserve the lien. It is conceded that this was not done. They therefore have no statutory lien. Peacock v. Morgan, 61 Tex. Civ. App. 193, 128 S. W. 1191; Eads & Co. v. Honeycutt (Tex. Civ. App.) 185 S. W. 1030; Farmers' Elevator Co. v. Advance Thresher Co. (Tex. Civ. App.) 189 S. W. 1018; Security Trust Co. v. Roberts (Tex. Com. App.) 208 S. W. 892. So far as our decision in Re Woulfe & Co., 239 F. 128, is to the contrary it is disapproved.

Landlords by article 5238 have a lien on all property of the tenant on the rented premises for rent due or to become due, and no record or other action is necessary to perfect it for arrears not exceeding six months. Marsalis v. Pitman, 68 Tex. 624, 5 S. W. 404. We see no reason to doubt that in Bayer's estate the landlord has such a lien on the proceeds of the merchandise and fixtures. We cannot tell certainly from the record whether the personal property sold in Brannon's estate was on the rented property or not, but that seems not to be denied.

In ascertaining whether under Texas as law state, county, or city taxes have a lien adhering to the property...