In re Kaplan

144 F. 159, 1905 U.S. Dist. LEXIS 11

• Court: District Court, N.D. Georgia
• Decided: October 1, 1905
• Status: Published

Opinion

NEWMAN, District Judge.

I am satisfied that the decision of the referee in this case is correct upon the main question involved; and that is the right of the trustee in bankruptcy to have possession of the bankrupt’s property and to administer the same Of course, the mortgage lien of Mrs. Hearndon, if valid, and I do not understand that to be questioned, is in no way affected by the property going into the hands of the trustee in bankruptcy. In re Booth (D. C.) 96 Fed. 943.

Counsel rely on the case of Metcalf v. Barker, 187 U. S. 165, 23 Sup. Ct. 67, 47 L. Ed. 122. The effect of this decision of the Supreme Court is discussed by Judge Evans in the recent case of In re Knight (D. C.) 125 Fed. 35. It is his conclusion that neither that case nor the case of Pickens v. Roy, 187 U. S. 177, 23 Sup. Ct. 78, 47 L. Ed. 128, affects the present question; and this is in accordance with my own views on the subject. In the Knight Case Judge Evans examines the authorities fully and carefully, and to discuss them here would be mere reiteration. Reference to that case is sufficient.

It may be proper to call attention particularly to the fourth headnote in the Knight Case, especially pertinent here, which is as follows:

“In general, an adjudication oí bankruptcy vests the bankruptcy court with exclusive jurisdiction to administer the property of the bankrupt, as against any state court which may have obtained possession of such property through proceedings instituted within four months prior to the adjudication, and it is immaterial that the proceedings in the state court were for the enforcement of liens not affected by tlie bankruptcy act”

The decision of the referee holding that the trustee is entitled to possession and administration of the property is approved, his report confirmed, and an order may be taken accordingly.