Gignoux v. Stafford , 6 N.Y. St. Rep. 56 ( 1886 )

Barnard, P. J.:

The case of Smith v. Long (12 Abb. N. C., 113) has no application to the facts of this case. By the bankrupt act of 1841, chapter 9, sales of property under its provisions were to be “ made at such times and in such manner as shall be ordered and appointed by the court in bankruptcy.” The Court of Appeals held, in a case of public sale, that the bankrupt court must fix the time of the sale. The bankrupt court could, however, authorize a private sale, and in respect to the land in question, did authorize the assignee in bankruptcy to sell it at private sale, which, was done. The court, in such a case, was not bound to name a time when the sale should be consummated. The object of the law was to prevent sales without due proof of publicity. This provision would not apply to a private sale when a court, in the exercise of an undoubted power, authorizes a private sale, and fixes the consideration in the order. It would be an entirely useless requirement to fix a day for this private sale so authorized.

. The assignment to the receiver in chancery in some way became inoperative. The creditors who instituted the proceedings were made parties to the proceedings in bankrupcy. The assignment to -the receiver was annexed to the bankruptcy proceedings, and after this the bankruptcy court ordered the sale of the lands conveyed by it. This must have been based either upon the assignment to the receiver being void under the bankrupt act, or by reason of the creditors preferring a distribution under that act. In either event the creditors were bound by the sale ordered by the United States District Court.

The title is not a doubtful one, but is good, and the defendant should take the same under her agreement.

Pratt, J.:

This is a submission of controversy, and the only question seriously raised is whether a sale by a general assignee in bankruptcy under an order that does not fix the time when such sale shall take place is valid.

Section 9 of the act provided that all sales by assignees “ shall be made at such times and in such manner as shall be ordered and appointed by the court.” The order under which the sale took place was as follows: “ Ordered that the official assignee be authorized to sell and dispose of the property herein referred to, etc., at private sale, pursuant to the rules of said court.” It is conceded the court had power under other provisions to order a private sale.

It will be at once seen that if the act in question is to be construed so that the court must appoint a time when the property should be sold at private sale, the power to sell at private sale is nugatory. No court could appoint a time when property should be sold at jsrivate sale, and hence such a construction cannot be entertained. The whole law upon this subject must be read and all its parts construed in connection with each other. The section simply means that when a time is appointed it must be sold, but the court can direct the manner, and if it directs a manner in which it is impossible to appoint the time, the sale is not void. The specific words of the statute can be given their full force and meaning by applying them to sales ordered to be made at auction, and the time fixed for such sale to take place. The case of Smith v. Long (12 Abb. N. C., 113) is invoked as authority against this sale. That case has no application, as the sale was a public one, and the time could have been appointed.

The interpretation I have put upon this statute follows the general practice in the United States courts for a long series of years, and if it is not the proper one, then a large number of land titles will be thrown into inextricable confusion and doubt. It cannot be that the State courts, at this late day, will so interpret a statute as to run counter to the established practice in the United States courts, and throw doubt over the title of an immense amount of property that is held by virtue of such sales, especially when full effect can be given to the words of the stature, by holding that the appointed does not refer to an order providing for a private sale. The doctrine of the case of Smith v. Long does not cover this case, and it is not likely to be extended, in view of the consequences it would entail. We think the sale here by the assignee was valid, and carried the title.

A point is made that the title here is in a receiver in chancery, but it does not appear that any such conveyance was ever recorded, and it appears that the plaintiff is a bona fide purchaser, and has been in exclusive possession for twenty years. We have no hesitation in holding that the title is good, and that defendant must take it.

Judgment for affirmance.

Judgment for the plaintiff on submitted case.