296 F. 294 | 4th Cir. | 1924
The People’s National Bank of Strasburg, Va.,-hereinafter for-brevity called the bank, has brought to this court, the dispute here involved by petition to superintend and revise and also by appeal. The questions at issue are, first, whether the court of bankruptcy, under the circumstances shown in the record, had jurisdiction in a summary proceeding to set aside as preferential a deed of a farm made by' the bankrupt to the bank within four months of the filing of the petition in bankruptcy, qnd, second, if it had, whether upon the evidence it was justified in doing so. The controversy is one be
One week after the filing of the petition in bankruptcy, two other creditors in the circuit court for Shenandoah county, Va., brought suit in equity against the bank and others to set aside tíre deed in question as made to hinder, delay, and defraud creditors. The hank appeared especially in these 'state court suits and pleaded in abatement the adjudication of the grantor in the deed as a bankrupt and the pendency of the bankruptcy proceedings.
In his schedules, the bankrupt had listed the bank as still his creditor on the notes, aggregating approximately $9,000, to pay which he had conveyed the farm to it, and he also stated that such conveyance constituted a voidable preference. It seems that after the deed was made he became indebted to the bank in the comparatively small additional sum of $126.38. It wished to participate in the creditors’ meeting, in part to proye this additional indebtedness and chiefly perhaps, to examine the bankrupt as to the circumstances under which the conveyance was made, but it was also anxious that by doing so, it should not be held to have assented to the contention that it had been improperly preferred. Accordingly, on receipt of the referee’s notice of the first meeting of the creditors, it prepared and filed with him what it called a “statement of limited appearance of the People’s National Bank at the first creditors’ meeting.” In this, after reciting that it received the notes and quoting what the bankrupt said in his schedule, it proceeded to deny that it had obtained a preference as charged in the bankrupt’s petition, and alleged in a suit in the state court by other creditors. It said “that it did not surrender its alleged preference or waive any right acquired under the deed but that it claimed the right to appear in defense of the charges and to that extent, at least, to examine the bankrupt.” It set forth the additional indebtedness, how it arose and said that “it had" the right to prove said debt and file the same without prejudice to its rights acquired under the deed.” It added that it filed the statement to show the limited extent to which it claimed the right to participate in the proceedings before the referee, and that it desired to make only a special appearance therein for the purpose above stated. The first meeting of the creditors was held on February 14.
On that day the counsel for the bank, in an attempt to show that the deed was not preferential, put the bankrupt through a searching examination which now covers more than 50 pages of the printed record. The meeting of the creditors was then adjourned until March 1, on which last-mentioned day, the bank filed in the court of bankruptcy an elaborate petition in which it told in considerable detail its version of the transaction leading up to and culminating in the making of the deed. It set forth the bringing against it in the state court of the suits already mentioned, and told of its pleas to the jurisdiction therein. It then said
On the day of the filing of this petition, the bank further examined the bankrupt and put on the stand seven other witnesses, most of whom were its own officers or directors, in an attempt to show that the conveyance did not constitute a voidable preference. The referee apparently took the petition of the bank and the testimony it had offered in support of it under consideration, and some five or six weeks later, and long before he announced any conclusion therein the trustee asked
The purpose of a plenary suit is to bring in one who has not voluntarily made himself a party to the proceedings in bankruptcy. It is unnecessary, even as against an adverse claimant who has of his own motion submitted his rights to the determination of the court in bankruptcy. In re Hollingsworth & Whitney Co., 242 Fed. 753, 155 C. C. A. 341. The law says he may not be compelled to come into the bankruptcy cause and cannot be forced to answer otherwise than in a plenary suit. All this, however, is merely for his protection, and he may waive it (Salsburg v. Blackford, 204 Fed. 438, 122 C. C. A. 624) as he does if, of his own motion, he comes into the bankruptcy court and asks it to determine what rights, if any, the trustee has in particular property. The bankrupt asked the court to forbid any suit to set aside the deed because it was not a voidable preference, and put in its testimony to sustain that contention.' It could not make'jurisdiction depend on the conclusion the court might reach upon the merits. It might not say that the court had the right to decide the controversy in its favor but was without authority to reach an opposite conclusion.
It is unnecessary to discuss the evidence as to the merits. It is sufficient to say that the referee and the court below agree that the bankrupt at the time he made the deed was insolvent and the agent acting for the bank had good reason to believe that the effect of the deed would be to prefer it over the bankrupt’s other creditors of the same class, and that we find ourselves in full accordance with these conclusions. It follows that in 2197 the decree must be affirmed.
No. 2175 dismissed.
No. 2197 affirmed.