In re VILA, 28 F. Cas. 1188

STORY, Circuit Justice. I have no doubt whatsoever of the authority of the district court to order the sale of the whole, or any part of this property, in the present stage of the proceedings in bankruptcy, in its discretion, if it will, in the judgment of the court, be beneficial to the creditors, and is assented to by the bankrupt.

The authority results from the general jurisdiction of the court as a court of equity sitting in bankruptcy; and it becomes the duty of the court, from the moment that the property is submitted to its custody, under the proceedings in bankruptcy, to take due order for its preservation, and to turn it to the best account for the creditors. No one could well doubt this, if the property were perishable; and quite as much injury might result, if it were, in the interval, subject to great depreciation from other causes.

I say, that the sale may be made with the consent of the bankrupt; for. as he has not as yet been decreed to be a bankrupt, it would seem unfit to exercise the authority without sueh consent, until the property is de-vested from him under the decree declaring him a bankrupt.

It is necessary, however, that the creditors should have due notice of this application, before the sale takes place, so- that they may appear and shew cause in the district court against :ny sale, or for a postponement thereof; and doubtless the best mode of giving notice to the creditors would he by advertisement in some public newspapers, a sufficient time before the sale to enable them to act, if they see fit, in the premises. The sale, if directed by the court, should, as I think, be mad0 by a commissioner appointed by the court, and not by the bankrupt.

The commissioner would naturally seek the aid and service of the bankrupt and of the creditors to assist his own judgment, not indeed as a matter of strict duty, but of - convenience and propriety. The time and place cf sale should be fixed by the court and duly advertised; and the conveyance should be made by the bankrupt to the purchaser or purchasers, in the form prescribed by the commissioner, and with his sanction and approbation as a party thereto, with the proper recitals. I shall direct an order to be sent accordingly to the district court, certifying this opinion.

The following order was accordingly sent: Circuit Court of the United States, Massachusetts District. In Bankruptcy. March 19, 1842. In the Matter of James Vila, Petitioner.

Upon the question certified and ordered to be adjourned into this court by the district court, to be heard and determined, it is hereby ordered and decreed to be certified to the district court, as follows: That it is competent for the district court, sitting as a court of equity in bankruptcy, to authorize and decree a sale to be made of the property mentioned in the said petition, or any part thereof, as the district court may, in its discretion, deem for the interest of the estate.

The sale is to be made at public auction, at such time and place as the said court may direct, by a commissioner to be appointed by the court for that purpose. That the creditors, who have proved their debts, and all other creditors, who shall prove their debts, are to have notice, by a publication in some newspaper or newspapers designated by the court, of the time and place of such intended sale, that they may appear and show cause, why the sale should not be made, and apply to the court for a stay or suspension thereof.

That the deed to be executed to the purchaser shall be executed by tbe said Vila in due form of law, and shall be in sucb terms and with such covenants as the commissioner shall advise and direct; and that the commissioner shall also be a party to the said deed and execute the same, and that the same shaE contain a recital. that the sale has been made by him, under the authority of the court, and has been approved by him. and that the proceedings under the sale have been in all respects conformable to the decretal order of the court.