In re Levinson

• Decision Date: 15 December 1923
• Docket Number: 6268.
• Citation: 295 F. 146
• Parties: In re LEVINSON. Petition of ROSENBERG.
• Court: U.S. District Court — Western District of Washington

295 F. 146

In re LEVINSON. Petition of ROSENBERG.

No. 6268.

United States District Court, W.D. Washington, Northern Division.

December 15, 1923

Walter B. Allen, of Seattle, Wash., for petitioner.

McClure & McClure, of Seattle, Wash., for trustee.

NETERER District Judge (after stating the facts as above).

The Supreme Court, by its judgment in Greene, Trustee, v Levinson, 123 Wash. 370, 212 P. 569, holds that the leasehold interest was the community property of the bankrupt and his wife, carried in the name of the Manhattan Investment Company, and that the trustee in bankruptcy was vested therewith. I think it is primer law that a leasehold of a bankrupt passes to the trustee by operation of law. Gazlay v. Williams, 210 U.S. 41, 28 Sup.Ct. 687, 52 L.Ed. 950; Prudential Lithograph Co. (D.C.) 265 F. 869 affirmed (C.C.A.) 270 F. 469, 45 Am.Bankr.Rep. 409; Black on Bkptcy, Sec. 326; Remington Bkptcy, 1220; Zwietusch v Luehring, 156 Wis. 96, 144 N.W. 257; Farnum v Hefner, 79 Cal. 575, 21 P. 955, 12 Am.St.Rep. 174; In re Bush (D.C.) 126 F. 878, 11 Am.Bankr.Rep. 415. The Supreme Court of Washington in Greene v. Levinson, supra, said that this identical leasehold was community property standing in the name of the Manhattan Investment Company. No act of the Manhattan Investment Company was necessary to vest the interest of the lease. This was effected by operation of law, and record evidence of interest affected by appointment or designation of law. Bemis v. Wilder, 100 Mass. 446; Gazlay v. Williams, 147 F. 678, 77 C.C.A. 662, 14 L.R.A. (N.S.) 1199.

The forfeiture clause of the lease reads:

'It is expressly agreed that if default be made in the payment of rent above reserved or any part thereof, or any of the covenants by the tenant, it shall be lawful for the owners and their lawful representatives at any time thereafter, without notice, to declare said term ended and to re-enter said premises with or without process of law * * * and * * * repossess and enjoy as before this lease.'

There is no express penalty fixed by the terms of the lease against assignment thereof, the provision being in the nature of a covenant, and not a conditional limitation of the estate which would end by determination of the grant, whereas the covenant requires re-entry to terminate the estate. Hague v. Ahrens, 53 F. 58, 3 C.C.A. 426. No words of agreement will create a condition. To produce this effect apt terms must be...