In re Gerry

• Decision Date: 13 January 1902
• Docket Number: 672.
• Citation: 112 F. 958
• Parties: In re GERRY.
• Court: U.S. District Court — Eastern District of Pennsylvania

112 F. 958

In re GERRY.

No. 672.

United States District Court, E.D. Pennsylvania.

January 13, 1902

John Dickey, for trustee.

Edmund Jones, for claimant Christopher Fallon.

J. B McPHERSON, District Judge.

Under an order granted by the learned referee, the entire estate of the bankrupt, real and personal, was sold to Christopher Fallon at private sale for the lump sum of $27,500. The real estate comprised 12 lots of ground, upon which were the liens of mortgages, ground rents, municipal claims, and taxes; and the order of the referee expressly specified that the purchaser should take the property 'under and subject to the incumbrances, respectively, hereinbefore mentioned. ' Having been obliged to pay some of the liens for municipal claims and taxes, the purchaser now insists that the bankrupt's estate should repay this sum; putting the claim upon the ground that the 'incumbrances' to which the order of sale applied were simply mortgages and ground rents, and did not include liens for municipal claims or for taxes. This contention is based upon the language of the trustee's petition asking for the order of sale, but I agree with the learned referee that the language does nor properly bear such a construction. It is true that some of the incumbrances specified in the petition are mortgages and ground rents, but after referring to these the trustee at once proceeds to add 'that there are also unpaid taxes and water rents for a year or more on said properties, * * * (and) that some of the above-mentioned properties are further subject to municipal claims'; and the order of sale thereupon authorizes a deed of the realty to be made 'under and subject to the incumbrances respectively, herein-before mentioned.' The deed made in pursuance of this order conveys the property 'under and subject to the several incumbrances on said properties above described, but with no personal liability on the part of the said Christopher Fallon, directly or by implication, for the payment of the same to the holders of the said incumbrances.' There is nothing, I think, in the petition, the order, or the deed,-- certainly there is, at the best, too little,-- to show that the distinction now sought to be drawn by the purchaser between 'incumbrances' and liens was intended to be drawn and, of course, unless it appear clearly that the word 'incumbrance' is used in a restricted sense, its ordinary meaning should prevail. This...