In re Ten Eyck , 23 F. Cas. 844 ( 1872 )

HALL, District Judge.

In my judgment it is not proper for me now to decide either of the questions presented by the annexed submission, to which the lessors therein referred to and the assignee in bankruptcy are the only parties, unless the second presents the question of the liability of the as-signee in bankruptcy in the character of an assignee of the lease.

The first question is one in which the as-signee has no interest, as it can only be yjroperly adjudicated in a suit brought to enforce such liability, and a decision of the question in this proceeding would not bind the parties to such suit Besides it is upon the effect of the discharge and not of the adjudication, that the question of such liability must depend.

The second question, as I understand it. can only be properly adjudicated after the lessors have presented and made formal proof of their claim, as required by the bankruptcy act [of 1867; 14 Stat. 517]. Then if the claim is resisted by the assignee and disallowed b.v the district court, the claimants would have a right of appeal to the circuit court, and of a trial in that court, as provided in the bankruptcy act. Besides, by the brief presented on behalf of the lessor, it is contended that they cannot legally prove a claim for such rent, and until they propose to prove such claim, no question in regard to its validity has arisen between them and the assignee.

The third question is regarded as the same in substance as the first, for the reason that if the claim for rent is provable, it can be discharged.

The fourth question is too general, and no answer to it can be given under the facts stated. If the lessors had not already, in legal effect, re-entered upon the demised premises, by accepting the tenancy of the assignee in bankruptcy independently of the lease, the disposition of the unexpired term must depend upon the future action of the lessors and assignee.

It may possibly have been intended by the second question to submit whether the as-signee, under the facts and circumstances stated, had assumed the position and liability of an assignee of the lease, and had therefore become liable in that character for subsequently accruing rent; and if so, it is proper to decide that question. The question, so understood, must be decided in the negative. There is nothing evidencing an election by the assignee to accept that position, except his occupation of the premises; and it is expressly stated that such occupation was independently of the lease, and that the assignee had paid for such occupation. This occupation therefore is not evidence of such an election. It is well settled that until an assignee in bankruptcy-elects to accept a lease as assignee, he does not become liable for rent accruing after the adjudication and assignment in bankruptcy. Turner v. Kichardson, 7 East, 335; Copeland v. Stephens, 1 Barn. & Ald. 593; Martin v. Black. 9 Paige, 641; Lewis v. Burr, 8 Bosw. 140; Carter v. Hammett, 12 Barb. 253; Smith v. Gordon [Case No. 13.052], And see as bearing upon the question presented, Bourdillon v. Dalton, 1 Peake, 238, and 1 Esp. 234; Wheeler v. Bramah, 3 Camp. 340; Hanson v. Stevenson, 1 Barn. & Ald. 303; Carter v. Warne, 4 Car. & P. 191; Journeay v. Brackley, 1 Hilt. 447; Jermain v. Pattison, 46 Barb. 9; In re Wynne [Case No. 18,117]; In re Merrifield [Id. 9,465]; Murray v. De Rottenham, 6 Johns. Ch. 52; Funtur v. Graham, note to 8 East, 317; Mayor v. Steward, 4 Burrows, 2439; Boot v. Wilson, 8 East, 311; Wadham v. Marlowe, note. 8 East, 314; Stinemetz v. Ainslie, 4 Denio, 573; Lansing v. Prendergast, 9 Johns. 137; Bosler v. Kuhn, S Watts & S. 183; Prentiss v. Kingsley, 10 Barr [10 Pa. St.] 120; and the cases referred to in the reports of the eases above mentioned. Under these cases, and the fourteenth, nineteenth, twentieth and thirty-fourth sections of the bankrupt act, the questions submitted in respect to the effect of a bankrupt’s discharge, and the right of the landlord to prove for rent accruing after the adjudication in bankruptcy, and, if so, whether it must be considered a debt secured by a pledge of or a lien on the property of the bankrupt, and conditionally provable under section twenty, are questions by no means free from doubt, and upon which I do not propose to deliver an opinion until the questions are presented under such circumstances as require me to make a judicial decision.