222 F. 87 | N.D.N.Y. | 1915
(after stating the facts as above).
The situation is somewhat complicated, and there is a question as to what personal property is covered by the mortgage, and also other questions. It appears from the papers before the court that the bankrupt corporation was organized as a manufacturing stock corporation, about April 15, 1904, under the general laws of the state of New York. The original plant of the company consisted of a pulp mill, á paper mill, and the machinery and appurtenances connected therewith, together with' a storehouse and usual outbuildings, and the real estate consisted of about 100 acres of land, including the water power, on the
About June 7, 1906, and subsequently to the execution of the said first mortgage and the supplemental mortgage above referred to, the company acquired from one Baker about one-fourth of an acre of laud, and about April 1, 1911, said company acquired from one Cunningham and others a parcel of some 15 acres of land. In 1911, on these last-mentioned parcels of land, the company erected its wall paper or printing mill, and this formed a part of the plant of the company, taken as a whole, at the time of the bankruptcy of this corporation. These last-acquired parcels of land, on which was erected the wall paper or printing mill, are not claimed to be covered by the first mortgage or the said supplemental mortgage, and are not claimed to be covered by said mortgages. It is claimed, however, that this last-mentioned building was erected in such a manner and so located that it stands for some little distance on the lands included in said first mortgage.
About November 1, 1911, the now bankrupt corporation executed another mortgage to the said Adirondack Trust Company, as trustee, which covers and includes in its description, not only the property, real and personal, covered by the said first mortgage and the supplement til mortgage, but also the two parcels of land above referred to acquired after the making of the first mortgage and the supplemental mortgage. This last mortgage purports to have been given to secure an issue of 100 bonds, of $1,000 each, payable in 20 years, with interest, and which interest is payable semiannually. It is claimed that none of the. bonds purporting to be secured by this last-mentioned mortgage were ever legally issued and negotiated or sold by the bankrupt, or
■ It is. contended that the second mortgage is invalid, and that the bonds issued and so pledged under the last-mentioned mortgage are invalid. After the execution of the first mortgage and said supplemental mortgage, the corporation purchased at least appliances for use in the operation of the mills, and which are now on hand at the mill, and this includes blocks and designs used in printing wall paper, valued by the appraisers at some $2,750, but which in the schedules are valued at $10,000.
It is claimed by the trustee that this personal property and other personal property is not subject to the lien of the said first mortgage. Just what personal property is covered by and subject to the lien of the said first mortgage and the supplemental mortgage, which is the one sought to be foreclosed, must be determined, in case of dispute, in a litigation between the Adirondack Trust Company, as trustee named in the mortgage, and the trustee in bankruptcy, acting for the general creditors. The determination of this question can be retained by this court, by selling the whole property referred to altogether, including tools, etc., but not including, of course, manufactured goods or raw materials, free and clear of all liens and incumbrances, and allowing the lien of these mortgages to attach to the proceeds of sale, and thereupon proceeding to determine who has title to the proceeds of sale. If that course is pursued, it will be necessary to sell the real estate separately from the tools and personal property of that character. In a foreclosure action, brought to foreclose the first mortgage and the supplemental mortgage, it can be determined whether this personal property referred to as tools, etc., is or is not covered by such mortgage. If the first mortgage is foreclosed, and a sale had thereunder separately and distinct from a sale of the other premises, on which was erected the building in 1911, the sale will take with it a portion of such last-mentioned building, and this will lead to complications. It is not made to appear to the court whether the prop
A sale by the trustee, or an offer to sell at public auction, can be brought about on 10 days’ notice, as it has been settled by the Supreme Court of the United States that 10 days’ notice of a sale of real estate by a trustee in bankruptcy is all-sufficient. There is no express authority in the bankruptcy law for a sale of real estate free and clear of liens and incumbrances; but it is now settled by a long line of authorities that such sales may be made, and that good title is given. This is all that this petitioner can ask, as an order pursuant
As the' bankruptcy law requires that all creditors and interested parties have at least 10 days’ notice .of all proposed sales of real estate, this court is of the opinion that the trustee on notice should apply for such an order as the court has indicated would be proper in the premises.
There will be an order accordingly.