224 F. 786 | E.D. Pa. | 1915
The controversy here is over the" sum of $130.44 in the hands of the trustee as a stakeholder, to be .paid to the person to whom the money should be adjudged to belong. The money was deposited under these circumstances: The bankrupt was the owner of certain real estate, against which was a mortgage. The mortgage was asserted by the mortgagee to he a lien, not only upon the land and building, hut also upon certain machinery therein, constituting in part the manufacturing plant of the bankrupt. This machinery was sold by the trustee as personalty; the purchaser agreeing that the land and buildings would bring at least the sum of $7,000. A sale was made of the latter property, and it brought $7,200. When settlement came to be made, a dispute arose over the question of the apportionment of the taxes for the then current year. The purchaser demanded a deed upon payment of, the amount of his bid. The trustee demanded in addition the sum of $130.44, representing the apportioned taxes for the unexpired part of the tax year. 'The question of the conveyance of the title was adjusted by the payment of the money to
The thought that the order of sale limited the divestiture to the liens and incumbrances set forth in the petition seems'to have found a lodgment in the mind of the referee. The language of the petition is that the real estate was, subject only to the lien of a mortgage and a claim for water rent, and that there were no other liens or incum-brances known to the trustee. The order of sale was that the property should be sold “free and discharged from all liens and incum-brances on said real estate described in the foregoing petition,” and that “the fund realized from the sale thereof shall be subject to the same liens and incumbrances as the real estate itself, is subject.” The return of sale sets forth the order to sell clear “of all liens and incum-brances,” and reports a sale in pursuance of the order. This is followed with a prayer for confirmation, and for authority “to execute and deliver a deed for said real estate free and discharged from all liens and incumbrances” upon the payment of the $7,200 therefor. The order of confirmation is that the described real estate sold “for the sum of $7,200 free and discharged of all liens and incumbrances,” and the trustee is directed to make conveyance upon receipt of said sum.
The order of sale was apparently construed by the trustee as meaning that the real estate should be sold clear of liens and incumbrances set forth in the petition. This meaning he gathers from the expres
If,' therefore, the present question is to be determined in the light of findings as made by the referee, the purchaser took a cíear title, and was under no obligation to pay anything beyond the amount of his bid, and it was the place of the trustee, both because the taxes were assessed during his ownership, and because of the order of the court transferring all liens against the real estate to the purchase money, to pay the taxes, and the petition of the purchaser for the return of the $130.44 deposited by him should havp been granted by the referee. Inasmuch, however, as there is at least the intimation in the record, and there was the assertion at the bar of the court at the argument, that this purchaser had agreed with the trustee that, in the event of his becoming the purchaser of the real estate, he would pay the taxes apportioned to the part of the tax year succeeding his purchase, we do not feel free to make this order, as the referee has returned no finding of this fact.
The disposition made of the present petition for a review is to revoke the order of the referee dismissing the purchaser’s petition, reinstate the same, and to remit the cause to the referee for further proceedings therein. We would add for the guidance of the referee that, if the case is free from any element of contract on the part of the purchaser to pay the apportioned taxes, he is entitled to a return of, the money deposited to cover this item. Whatever effect the agreement which he may have entered into has upon the situation, if it has any, can only be determined after the terms of the agreement are found and become facts of record.