Crowley v. Hyde

116 Mass. 589 | Mass. | 1875

Gray, C. J.

The bankrupt act provides that upon the execution of the assignment all the property of the bankrupt, of every kind not specifically exempted, shall vest in the assignee, and all debts and rights of action for or of redeeming property of the bankrupt, “ with the like right, title, power and authority to sell, manage, dispose of, sue for and recover or defend the same, as the bankrupt might or could have had if no assignment had been made.” The further provision that he may, “ under the order or direction of the court,” redeem or discharge any mortgage or incumbrance, or sell subject to it — like that authorizing the court, upon petition and for cause shown, to make an order concerning the time, place and manner of selling unincumbered property — does not affect the general powers of the assignee, when no special order is made. U. S. St. 1867, c. 176, §§ 14,15.

The regulations contained in the General Orders, framed by the Supreme Court of the United States under § 10, concerning the notice to be given of such sales, must be deemed, like the corresponding provisions of our own St. of 1861, c. 104, in the case of insolvent debtors, to be directory only, affecting the accountability of the assignee, but not the title of those who purchase in good faith from him. Tuite v. Stevens, 98 Mass. 305.

The case differs from that of Osborn v. Baxter, 4 Cush. 406, in which an express requirement of the bankrupt act of 1841 had been disregarded by the court in an order for a sale by an assignee appointed under that act; and from Wellman v. Lawrence, 15 Mass. 326, which was a case of a sale by an administrator, who had no title in the estate, but a mere power to be exercised in strict compliance with the statutes of the Commonwealth.

The plaintiff has therefore no ground of objection to the title offered to be conveyed to him by the assignees, and no right to recover back the money paid under the contract of sale.

Judgment for the defendants.