In re Purity Sweets Corp.

285 F. 1023, 1922 U.S. Dist. LEXIS 1193

Opinion

CHATFIELD, District Judge.

Certain property, which was subject to a chattel mortgage, of which the validity was in dispute, has been turned back to the trustee in accordance with the terms of the order for sale made by the referee on the 24th day of February, 1922. This property had been taken over by tbe chattel mortgagee on a bid, for which the consideration was to be paid by the delivery of the mortgage, if valid, and the property turned back, if the mortgage should he held invalid. A report has been filed by a special commissioner, to the effect that the mortgage is invalid. This report has been confirmed by a memorandum filed May 1, 1922, but no order holding the mortgage invalid has been entered therepn. The mortgagee has'filed no exceptions to the report,- and now applies to surrender the property under the terms of the order above mentioned, upon statement of the premise that the mortgage has been held invalid. This is an acquiescence or acceptance by the mortgagee of the finding that this chattel mortgage is invalid, and therefore leaves the trustee in possession of the estate, which should be at once appraised and sold in the ordinary way at auction. It is apparent from the record that the expenses of carrying the property were paid by the person who conditionally purchased the property and agreed to carry these expenses, and also to account for the entire property, if it was turned back to the estate. A careful inventory and a stipulation should be made between the mortgagee, the trustee, and the person who has been occupying the property for the purchaser (one Leventhal), as to what property was taken over and turned back, and the exact condition of the same, go that, if there is any point of disagreement, the facts may be determined before the property is sold to another purchaser.