226 F. 982 | E.D. Va. | 1915
These three cases are now before the court upon schemes of distribution, reported by Referee R. T. Thorp, and, while they are in no way related one to the other, they each present for consideration the same question; that is, to what extent the property of the several bankrupts in the hands of their several trustees, and subject to a specific lien for rent thereon, shall be charged with the costs o£ administering the bankrupt’s estate, or, in other words, what items of cost of administration may be paid out of funds charged with such liens.
“Debts owing to any person wbo by tbe laws of tbe states or tbe United Ktates is entitled to priority.”
It is insisted that the general costs of. the administration of a bankrupt’s estate should first be paid, in preference to those entitled to priority of payment by the laws of either the state or the United States, and hence that in such cases the entire cost of administering, including attorney’s fees, referee’s general costs, and costs and expenses of receivers and trustees, should be paid in preference to rent due by a bankrupt; in other words, that a claim for rent is only a debt, to which priority is given by the laws of. this state.
The court’s conclusion is that this view is fallacious; and, without meaning to sáy how far general costs in bankruptcy take precedence
The suggestion is made that the landlord’s lien should not relatively occupy the status of a lien by trust deed, for the reason that as to the former, legal proceedings have to be inaugurated to enforce it, and hence that the same should occupy no other or different position from that of the lien of a judgment. This view, is not, in the opinion of the court, sound. The lien of a judgment covers the estate of a bankrupt generally, and not specific property, as that of the lien of the landlord, which attaches without the institution of any legal proceeding, and from the moment property of the bankrupt is placed upon the landlord’s premises. Moreover, while such lien may be enforced by distress or levy, still the issuance of such process is not necessary where the estate of the debtor is being administered in bankruptcy. The court takes judicial notice of the lien given by the state statute. This has been the uniform practice in this district since the decision of Chief Justice Chase, under the Bankruptcy Act March 2, 1867, c. 176, 14 St at. 517, in Re Wynne, Fed. Cas. No. 18,117, a leading case on the subject of landlord’s rights.
The several schemes of distribution hereinbefore referred to will be remitted to the referee, to reform the statements of costs in accordance with 1hese views.