Eyster v. Gaff , 2 Colo. 228 ( 1873 )

Wells, J.

Passing by all questions as to whether the assignee of McClure was or was not a necessary party to the bill to foreclose, and as to whether the decree given therein, after the bankruptcy, and without joining him, is or is not void, it appears to us that the appellees were properly permitted to recover in the court below, upon their mortgage alone. This results necessarily, as we think, from the nature of the mortgagee’s estate, and the relation of the assignee thereto. The lien and estate of the mortgagee is preserved, notwithstanding the bankruptcy, and the assignee succeeds to the right which the mortgagor had before bankruptcy.' If the assignee has, in person, or by another, taken actual possession of the estate, the mortgagee cannot disturb that possession by an action brought after the initiation of the bankruptcy proceedings; in such case the possession of the assignee is the possession of the court in bankruptcy, and if the mortgagee would enter, he must first obtain the permission of that court. But in many cases he is not entitled to such possession; e. g., when the estate assigned consists of realty, subject to mortgage, and the mortgagee has entered before the bankruptcy. In such case the mortgagee unquestionably may retain the possession which he has lawfully acquired. So there are other cases where, though technically entitled to the possession, he is not only not bound to assume it, but his duty is to leave it where the bankruptcy finds it, e. g., where the estate assigned is subject to incumbrance exceeding its value. Lambert's case, 2 B. R. 138. Therefore, where the estate is assigned subject to mortgage, it ought not to be said, that as matter of law, nothing being shown as to the fact, the assignee had either the actual or constructive possession. And in the present case the appellant had not in any way connected himself with the assignee, nor shown even that the assignee had ever assumed or attempted to assume the possession of the premises. If, as for aught we know is the case, the assignee disclaims the estate, the plaintiffs certainly are entitled thereto, and they ought to be permitted to proceed against the defendant, who appears to be a mere stranger in the ordinary courts; notwithstanding the bankruptcy.

The judgment of the district court is

Affirmed.