In re Vogel

28 F. Cas. 1239, 7 Blatchf. 18, 3 Nat. Bank. Reg. 198, 1869 U.S. App. LEXIS 1402

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: September 27, 1869
• Status: Published

Opinion

NELSON, Circuit Justice.

The question involved in this case has been several times before me, not, perhaps in the precise shape in which it is now presented, but involving substantially the same principle, and that is, whether or not all the property of a bankrupt, in his actual possession at the time of the filing of the petition in bankruptcy, passes into the hands of the assignee the instant he is appointed.

I have regarded the several provisions of the act of congress, that are specially referred to in the opinion of the district judge, as decisive in favor- of the affirmative of this question. The 3Sth section provides, that the filing of the petition shall be deemed and taken to be the commencement of proceedings in bankruptcy under the act; and the 14th section provides, that the assignment of the estate of the bankrupt; made to the assignee, shall relate back to the commencement of the proceedings in bankruptcy, and that thereupon, by operation of law, the title to all such property and estate, both real and personal, shall vest in the as-signee. Nothing can be more specific and der cisive on the question, and there are no other parts of the act which, when rightly understood, vary the effect of these sections.

[See Cases Nos. 16.083 and 16.984.] [See In re Gregg [Case No. 5.796]; Davis v. Anderson [Id. 3.023]; Stuart v. Hines [33 Iowa. 60]; Miller v. O’Brien [Case No. 9,586.]²

The proper remedy for the creditors, under the circumstances, was, to apply to the district court for relief, or to await the appointment of the assignees and institute a proper action against them in the district court or in this court. The petition for review is dismissed.