In re Kolin

JENKINS, Circuit Judge. The cause was tried and determined below, and this without objection from either party, upon the question whether the alleged transfer to Tomsik was fraudulent. The court and the parties seem to have overlooked the ruling of this court in Booneville National Bank v. Blakey, 47 C. C. A. 43, 107 Fed. 891, that a receiver is a mere custodian of property taken from the possession 559 of the bankrupt until a trustee is appointed; that he does not exercise the powers of a trustee, and while he may take appropriate measures incident to the protection of the property in his custody, and, in case of perishable property may, under the direction of the court, sell the same when necessary, yet he is not authorized, nor can the bankruptcy court properly direct him, to take possession of property held and claimed adversely by third parties, or to institute actions for the recovery of property claimed to belong to the bankrupt’s estate. Beach v. Macon Grocery Co., 53 C. C. A. 463, 116 Fed. 143. The petition of the appellant averred that the property in question was taken from his possession against his protest. The answer averred that possession was taken with the consent of Tomsik and that no claim was asserted by him at the time. The only issue properly before the court was, therefore, whether Tomsik was in possession of the property claiming ownership, and whether he consented to the taking of possession by the receiver. If he was in such possession, however fraudulent his title, the receiver had no right to take possession from him against his protest; otherwise, if he voluntarily surrendered possession to the receiver. The appellant is in no position to take advantage of the course pursued below, since the evidence upon the validity of the transfer was not only received without objection by him, but was in the first instance produced by him. We are content to affirm the decree dismissing the petition, and upon the ground that the appellant failed to prove any such possession as the law requires, and that he made no claim to possession when possession was taken by the receiver, but, if he was possessed, voluntarily surrendered possession. The question is one purely of fact and it would serve no useful purpose to enter into a discussion of the conflicting evidence. The court below and the master have decreed, the facts against the appellant. The master had the witnesses before him, saw their manner of testifying, and is better able to solve the riddle than we could upon this record. The affirmative was upon the appellant to sustain this petition by the preponderance of evidence. It is upon him here to. show manifest error in the decree appealed from. The rooms in this building communicated from the interior by two side doors, from the saloon into the hallway on the one side, and from the office into the hallway upon the other side. It was in fact but one building, used for a single business. The saloon part had been closed for over a month and its business suspended. The pretended sale was not consummated until the evening of the 5th of November, although on that day Tomsik procured a government license, but had not taken out a city license, and had also on that day purchased a small quantity of beer. There had been no change in the visible occupancy of the premises up to the time the receiver took possession. The outer doors of the saloon were closed and Kolin’s sign on the exterior of the building remained unchanged. At the time the receiver entered for possession, at about 11 o’clock on the morning of the 6th, Kolin was absent. The doors of the saloon were locked and Tomsik was in the office of Kolin with the latter’s bookkeeper. Tomsik told the receiver’s representative that he was an employé of Kolin’s, showed him around the premises, told him of the labor claims that Kolin owed, and said that 560 Kolin owed him $100. He let him into the saloon part and showed him how to lock the doors. He made no claim to the premises^ or property until some time after he had let the receiver in possession, when, having left the office for a short time, he returned with the bill of sale and lease. The evidence on the part of the receiver, which was credited by the master, showed that the saloon had not been opened for business by Tomsik or any one else. The witnesses stated that “it looked as if everything had been left there without being disturbed quite a while”; that the cash register stood on the counter, with a lot of whisky and beer glasses, the counter and glasses being covered with dust; that there was no evidence of any fresh beer having been drawn; that the front door of the saloon was locked. These are the facts found by the master, and we are unable to say that his finding is unwarranted by the evidence. Kolin remained ostensibly in full possession of the premises, maintaining his office and his residence there. We are fully persuaded that here was no such visible, notorious change of possession, or delivery of goods, as would avail against attaching creditors. A receiver or trustee stands in like plight with attaching creditors. The filing of the petition in bankruptcy “is a caveat to all the world, and, in fact, an attachment and injunction.” Mueller v. Nugent, 184 U. S. 1, 22 Sup. Ct. 269, 46 L. Ed. 405. The evidence establishes that, whatever was the possession of Tomsik, he voluntarily surrendered it to the receiver, and that therefore the latter’s possession was rightful, whether the alleged sale was bona fide or fraudulent. The decree will therefore be affirmed.