267 F. 1019 | D. Mass. | 1920
“unless the court shall on due notice, order that the right under such • * * * attachment * * * shall be preserved for the benefit of the estate.” Bankruptcy Aet, § 67f (Comp. St. § 9651).
The mere adjudication and appointment of a trustee do not of themselves operate to preserve an attachment; there must be affirmative action to effect that result. Davis v. Crompton, 158 Fed. 735, 743, 85 C. C. A. 633; In re Walsh Brothers (D. C.) 195 Fed. 576; In re Jules & Frederic Co., 36 Am. Bankr. Rep. 233. It follows that the lien of the attachment has not passed to the trustee and cannot now be asserted by him against the mortgagee.
As to the after-acquired property the referee was clearly right; it was, on the facts found, not subject to the mortgages, and belongs to the trustee. It should perhaps be observed that the procedure followed was not entirely regular; but the merits have been fully presented, and neither party has made any objections on purely formal grounds.
The order of the referee must be vacated, and the case recommitted to him for further proceedings in accordance with this opiniop.