197 F. 492 | E.D. Ark. | 1912
Interveners sold to the bankrupt certain trade fixtur.es for the sum of $1,000, of which.$400 was paid in cash, and for the balance of the purchase money notes payable in monthly installments were executed by the bankrupt. The bill of sale was in the form of a deed of indenture, "signed by the vendors and vendee, and conveyed the. personalty to the bankrupt with covenants of war- ■ ranty and containing the following provision immediately after the covenants of warranty:
“It is further agreed between the parties hereto, that, in the event of a default of the said E. Lutz in the payment of any of the above.-described notes when same shall become due, it is understood and agreed that said Julius and Mary Zinn may declare this sale forfeited and retake all of the goods hereby transferred.”
The referee, Hon. Charles C. Waters', held that upon these facts the interveners were entitled to the property, and now to the money or proceeds of the sale, to an amount sufficient to pay the notes in full. The trustee now seeks to set aside the order of the referee on petition for review.
“'One in winch the vesting of tlie title in the purchaser is' subject to a condition precedent, or in which its reinvesting in the seller is subject to a failure of the buyer to comply with a condition subsequent.”
Applying this rule to the facts in the instant case, the sale was conditional, and, the condition having, been broken, the vendors had the right to retake the goods, unless the trustee had been authorized by the creditors to pay the amount due on the notes executed for the purchase of the goods.
Whether the interveners would be entitled to retake the property, if their value exceeded the indebtedness due them; or be entitled to
The order of the referee was for the right party, and is approved.