In re Winter

• Decision Date: 19 January 1927
• Docket Number: No. 6195.,6195.
• Citation: 17 F.2d 153
• Parties: In re WINTER.
• Court: U.S. District Court — Western District of Michigan

17 F.2d 153 (1927)

In re WINTER.

No. 6195.

District Court, E. D. Michigan, S. D.

January 19, 1927.

Daniel R. Foley, of Detroit, Mich., for petitioners.

Paul R. Dailey, of Detroit, Mich., for trustee in bankruptcy.

SIMONS, District Judge.

This is a petition to review an order of one of the referees in bankruptcy for this district. Pursuant to the memorandum opinion heretofore filed herein, directing a re-reference of the cause to the referees for further findings, such findings and a transcript of testimony in support thereof have been returned to this court, and the matter is now ready for disposition.

The material facts, which do not appear to be in dispute. are as follows:

Before the date of the filing of the voluntary petition in bankruptcy herein, on which the bankrupt was adjudicated on said date, the bankrupt had purchased certain land, situated in Michigan, in this district, on a land contract containing the usual provision that, immediately upon the default of the vendee therein, the vendors might terminate such contract and repossess such land. The bankrupt had defaulted in his obligations under said contract, and was subject to such dispossession; and the bankrupt had been served with notice, by said vendors, of the termination of said contract, and of said bankrupt's rights thereunder. Pursuant to said default and notice, and before the time of the filing of said petition in bankruptcy, the said vendors had duly commenced against said vendee statutory summary proceedings, pursuant to section 13240 et seq. of the Michigan Compiled Laws of 1915, as amended by Act No. 243 of the Michigan Public Acts of 1917, before a circuit court commissioner of Michigan having jurisdiction over the parties and subject-matter involved, for the recovery of possession of said land.

After the filing of said bankruptcy petition, and after the adjudication of said vendee as a bankrupt thereon, but before the election of a trustee in bankruptcy for such bankrupt, and before any attempt by or on behalf of the bankrupt, or of any officer of the bankruptcy court to intervene or appear in said statutory proceedings (although said vendors had knowledge of the bankruptcy proceedings), the vendors obtained, in said statutory proceedings, a judgment for the recovery of possession of said land and the statutory period of 30 days for redemption from such judgment expired without any attempt at such redemption on the part of any one. Thereafter a trustee in bankruptcy was elected herein, and he instituted, before the referees in bankruptcy, summary proceedings in bankruptcy against the vendors for the recovery from them of said land or its value, on the ground that said judgment was void as against the trustee in bankruptcy, because it had been rendered after the filing of the bankruptcy petition and the bankruptcy adjudication thereon. An order was entered granting the relief so prayed, and the vendors filed their petition to review such order in this court.

Assuming, without deciding, that at the time of the filing of the petition in bankruptcy the bankrupt had such possession, actual or constructive, of the land in controversy as to support summary, as distinguished from plenary, proceedings by the trustee, I am of the opinion that the referee erred in making the order complained of.

It is, of course, elementary that the custody of property of a bankrupt which a court of bankruptcy obtains, and the title to such property which a trustee in bankruptcy acquires, are subject to whatever rights in, and...