DocketNumber: No. 7059
Citation Numbers: 19 F. Supp. 401
Judges: Moscowitz
Filed Date: 1/29/1937
Status: Precedential
Modified Date: 7/25/2022
Central Coal Company, a creditor of the defendant, moves (1) for an order granting it leave to intervene in this proceeding for the limited purpose of vacating an order made by this court dated December 19, 1936, which, among other things, released from the assets of the receivership estate and excluded from the operation of the injunctive provisions issued by this court on September 6, 1933, a parcel of real property owned by the defendant, and authorized the defendant and its officers to convey the same, in lieu of foreclosure, to the superintendent of insurance of the state of New York as liquidator of New York Title & Mortgage Company, the mortgagee, for the sum of $250; and (2) for an order directing and requiring that the conveyance of said property be effected in accordance with the provisions of title 28 U.S.C.A. § 847.
There is no dispute as to the essential facts in this matter and the sole question presented is one of law, namely, whether the proposed conveyance is encompassed within the purview of title 28 U.S.C.A. § 847.
In Prudential Insurance Company of America v. Liberdar Holding Corporation, 6 F.Supp. 903, which involved a conveyance similar to the one at bar (prior to the amendment of section 847, the effect of which will be considered), this court held that section 847 applied only to a “judicial sale” and had no application to a conveyance made by a company in receivership of real property which had previously been released from the receivership estate and excluded from the operation of the restraining provisions prohibiting it from exercising its jus disponendi with respect to the property.
At the time of this decision, section 847 read as follows:
"Sales; real property under order or decree. All real estate or any interest in land sold under any order or decree of any United States court shall be sold at public sale at the courthouse of the county, parish, or city in which the property, or the greater part thereof, is located, or upon the premises, as the court rendering such order or decree of sale may direct. (Mar. 3, 1893, c. 225, § 1, 27 Stat. 751.) ”
To this section, which has been altered in a minor respect, certain provisions have been added so that it now reads as follows:
*401 “Sales; real property under order or decree. All real estate or arty interest in land sold under any order or decree of any United States court shall be sold at public
An examination of the amendments and their legislative history leads this court to the conclusion that they do not affect or purport to affect the conclusion reached in Prudential Insurance Company of America v. Liberdar Holding Corporation, supra. They only apply where there is a judicial sale in the first instance and are silent with respect to conveyance's which do not fall within the definition of a judicial sale.
The petitioner concedes that section 847 is limited in its application to judicial sales, but maintains that the conveyance at bar is a judicial sale within that portion of the amendment which provides “ * * * That if at the time said property is offered for sale it is in the possession of a receiver or receivers, or ancillary receiver or ancillary receivers, appointed by one or more district courts of the United States, said property wherever situated shall be sold at public sale * *
Petitioner fails to distinguish between a conveyance made by a receiver as an officer of the court whereby title passes from the court, as vendor, to the purchaser, and a conveyance made by a company in receivership through its officers, after the property has been withdrawn from the receivership estate and returned to the possession and custody of the company. In the former case, there is present all of the elements of a judicial sale and compliance with the provisions of section 847 is mandatory. How
Motion denied. Settle order on notice.