156 F. 221 | S.D.N.Y. | 1907
Inasmuch as there is no evidence of insolvency on Pollmann’s part in November, 1904, the referee has based his finding entirely on section 670(3), Act July 1, 1898, c. 541, 30 Stat. 564 [U. S. Comp. St. 1901, p. 3449], holding that the German proce
In the able opinion filed by the referee I concur. If the procedure above outlined had taken place, as it well might, in the United States, it cannot be doubted that the successful attaching creditor would have been obliged to refund the proceeds of his attachment. The phrase “in fraud of the provisions of this act” is identical with that in the act of 1867, and refers to any proceedings disturbing the equitable distribution of the debtor’s estate (Toof v. Martin, 13 Wall. 40, 20 L. Ed. 481) ; and the word “permit” does not require any active participation in the process of transfer through legal proceedings. Mere passivity on the part of the debtor is sufficient. The same word (“permitted”) is used in section 3a(3), and has been frequently so construed. It is enough that the creditor is active and the debtor permits that activity to be unopposed. In re Thomas, 4 Am. Bankr. Rep. 573, 103 Fed. 272; Wilson v. Nelson, 183 U. S. 191, 22 Sup. Ct. 74, 46 L. Ed. 147. _ The fact that the lien was obtained in a foreign country can make no. difference in the meaning of the phrase “in the fraud of the provisions of this act.” That expression does not necessarily mean active fraud or illegality, but intent to prevent equitable distribution of the debtor’s property, and where that intent obtains is immaterial.
But, further, the decision is in my opinion right upon broad equitable grounds. It may well have been that the trustee acquired no title whatever to the German realty. Oakey v. Bennett, 11 How. 33, 13 L. Ed. 593. But this proves no more than that Klemm was entitled to enjoy in Germany the fruits of his German legal proceeding. The bankruptcy act (section 65e) declares that no claimant shall be entitled “to collect from a bankrupt estate any greater amount than shall accrue, pursuant to the provisions of this act.” This section does not relate merely to dividends. A claimant who comes into the bankruptcy court must get what he gets pursuant to the provisions of the bankruptcy statute, and, if he be permitted in any way to “collect” any where, or any how, more than the statute regards as equitable, this section is useless.
Again, the court in bankruptcy is by elementary rule a court of equity, possessed of full equitable powers within the limitations of the statute, and bound to exercise them in furtherance of the statutory object. In this way the English statutes have been construed from early times. In Selkrig v. Davis, 2 Rose, 291, a Scottish creditor had exercised upon the Scotch property of an English bankrupt much the same legal remedies as Klemm invoked in Germany, and Eord Eldon held that, if he chose to come into an English court, he should be treated as an English debtor who had obtained a preferential advantage, and dealt with as such. In Banco de Portugal v. Waddell, 5 App. Cas. 161, the claimant had reaped some advantage from a Portuguese proceeding of the nature of a general assignment (cessio bonorum) before propounding his unpaid balance as a provable claim in an English court. He was treated in much the same way as has been this petitioner, and the case decided on the ground that he who seeks equity
I think the form of the referee’s order would more properly have been that Klemm be denied any dividend until what time all other creditors had received the same proportion of their claims as Klemm has obtained in Germany; but the result is the same, and the order under review is affirmed.