193 F. 232 | D. Mass. | 1911
The bankrupt in this case is a mining corporation. Its property, consisting of certain patented and unpatented mining claims in Gila and Graham counties, Ariz., scheduled as of “uncertain” value, and certain machinery, tools, cars, and plants thereon whose value is given in the schedules as “book value $22,-791.27,” is subject to a mortgage deed of trust securing the issue of $250,000 face value 6 per cent, bonds due October 1, 1918. N. E. Amster holds its note for $100,000 payable September 24, 1910, secured by this entire issue of its bonds. It was adjudicated bankrupt on its own petition September 23, 1910.
Erank A. Woodward, Arthur Wainwright, and Francis M. Ed
November 2, 1910, after due notice and hearing, the referee ordered :
The property to be sold as a single parcel, at a date in the last week of February, 1911, to be thereafter fixed by the court, in Boston “or, if required by law, in the territory of Arizona.”
Notice of the sale to be given before that date, as required by law.
The sale to be free of incumbrances, at public auction, to the highest bidder, without reserve, not to be postponed save for imperative reason, nor in any case for more than 10 days without notice to Amster.
The proceeds to be applied to payment of expenses, discharge of various liens and incumbrances, and then to payment of Amster’s secured note, upon terms and conditions prescribed, but which need not be here recited.
January 23, 1911, Amster, as a creditor, filed a petition that the court fix a date in the last week of February for the sale. January 24, 1911, an order was entered fixing February 28th, and directing the sale to be on the premises in Globe, Ariz. The trustees were directed-by this order to give notice of the sale by publication once a week for at least four weeks prior to said date, and by mail to all creditors. The order further provided'that any purchaser should be required to deposit $5,000 with the trustees, to be forfeited in case the sale was not completed.
February 27, 1911, the trustees, filed a petition representing that it was expedient and for the best interest of the estate that they be authorized to postpone the sale, and asking authority to postpone it from time to time and for such periods of time as in their discretion they might determine, provided that Amster should consent to such postponement. An order granting such authority to postpone was made on the same day, without notice.
June 5, 1911, the trustees filed a petition reciting that they had duly advertised the sale for February 28, 1911, at 11 a. m., at the mouth of the Iron Cap Shaft, on the property at Globe, that the sale was adjourned by order of court to March 30, 1911, at the same time and place, again adjourned to May 1,1911, at the same time and place, and again adjourned to May 25, 1911, at the same time and place; also, that notice of the sale and the several adjournments had been published in Arizona papers named. Affidavits of publication and notice were annexed. The petition further alleged that the property was sold at 11 a. m. on M'ay 25, 1911, to the highest bidder; that the Iron Cap Copper Company, a 'Maine corporation, was the highest bidder and became the purchaser for $50,000; and that the trustee had received $5,000 from the purchaser as directed by the order of January 24th. A certificate from the auctioneer was annexed. It
Before mis petition for confirmation was filed on June 5th, Charles M. Bruce, alleging himself to be a creditor of and stockholder in the bankrupt company, had, on May 31, 1911, filed a protest against confirming the sale, wherein he set forth in substance the objections thereto now raised by him in his petition for review below mentioned.
On July 7, 1911, the referee confirmed the sale, after due hearing at which Mr. Bruce presented his objections and evidence in support of them. 1 le now asks the court to overrule and vacate the order of confirmation.
The secured debts, as scheduled by the bankrupt, are, besides Amstcr’s note for $100,000, secured by the bond issue of $250,000, in its turn secured by the mortgage above described — two claims of $2,-500 each, each secured by 12.500 shares of the bankrupt company’s' stock. The unsecured debts as scheduled are 835,550.28. The petitioner for review is not scheduled as a creditor, but it is not disputed that he has proved a claim, not yet allowed, for $333. His petition for review alleges that he is a ‘‘large stockholder’’ in the bankrupt company. As a stockholder it may be doubted whether he. has any standing to oppose the sale, independently of the bankrupt itself, on whose behalf there is no opposition. The bankrupt’s interest in opposing it would appear to be slight under the circumstances,. and creditors or persons desiring to purchase, to be the only persons whom the decision can affect. There is no other petitioner for review of the referee’s order. There has been no opposition to the sale on Amster's part.
The objections to the sale are set forth in the petition in the form of (1) a complaint that the referee excluded certain evidence offered; (2) requests for rulings made at the hearing and in effect denied by the order. The order is alleged to be against the law and the facts shown by the evidence. I shall deal directly witli the substance of the objections raised.
After consideration of the evidence before the referee, including that excluded by him against objection, and giving due weight to the admitted connection of one of the trustees with the Iron Cap Com-pan}-, I am unable to find, against the referee’s conclusion, that any deception, concealment, or fraud on the part of counsel, officers, or committees in connection with this sale has been proved. I see no reason to believe that there was any stifling of competition or any attempt to stifle competition. Had there been a possible purchaser really prepared to make a higher bid, and only prevented from doing so because he did not know when the sale would be had, I think he would have been heard from. I can find no reason to doubt that the creditors whose interest is the interest here most to be considered, approve the sale, generally speaking; nor can I believe that refusal to confirm would be for their interest.
The order of the referee is approved and affirmed.