In re Rubel

QUAKERS, District Judge (after stating the facts as above). The •text-books and the authorities all seem to concur in the proposition that rent upon such a lease which has not accrued at the time of adjudication cannot be proven as a claim in bankruptcy. Loveland on Bankruptcy (3d Ed.) 265, 268: Collier on Bankruptcy, 479; In re Jefferson (D. C.) 93 Fed. 918; Bray v. Cobb (D. C.) 100 Fed. 270; Atkins v. Wilcox, 105 Fed. 595, 44 C. C. A. 626, 53 L. R. A. 118; In re Hays and Foster (D. C.) 117 Fed. 879; Watson v. Merrill, 136 Fed. 859, 69 C. C. A. 185, 69 L. R. A. 719. These authorities are not in accord as to the method of reasoning by which the conclusion is reached. Some of them hold that the adjudication destroys the relation of landlord and tenant, and practically annuls the lease. Others hold that the claim, not being provable in bankraplcy, is not affected by the discharge; that the bankrupt remains bound by his covenant, but that the trustee is not bound thereby. It is conceded on all hands that the trustee has a reasonable time after his appointment to determine whether he will adopt the lease as an asset of the estate, and offer the same for sale, or whether he will ignore it entirely. For practical purposes, it makes uo difference in the instant case which line of authority is adopted, for either is fatal to a recovery of rent, as such, for the unexpired term. This petition, however, proceeds upon the theory that the occupation by the receiver and the trastee was tortious, and that a recovery may be had for any damages which proximately flow from the wrongful taking. By this course of procedure the petitioner meets a serious obstacle. The damages which he claims are entirely un-liquidated, and, under the provisions of section 63b, Act July 1, 1898, c. 5!1, 80 Stat. 562 (U. S. Comp. St. 1901, p. 8447), wxmld not be ripe for presentation or allowance until they had been liquidated by such means as the court might direct upon a petition to that effect. It appears that no application has been made to liquidate this claim. Unela these circumstances it would not be necessary to go further in order to justify the ruling of the referee. The claimant’s attorneys cite the case of Rlunter (D. C.) 151 Fed. 901, and insist that it is applicable aud controlling here. An examination of this case will show that the lease of the bankrupt had expired before the trustee went into possession, and therefore he was held by the court to he a trespasser. In the instant case the receiver and the trustee entered under the lease, and therefore could not he held to be trespassers. The notice to quit: provided for by the Wisconsin statute which was served upon the receiver was ineffectual to change the status of the parties. The receiver is not invested with the title, but is a mere custodian, without discretion, and until the trustee was appointed on the 29th day of April there was no legal representative of the estate who was clothed with title or authoritr in regard to the same. It appears that the trustee occupied the prop [134] erty only two days. The sale was made, and confirmed by the court on the 30th day of April, at which time the trustee abandoned his possession. There was then no reason why the petitioner might not have entered and taken possession on the evening of the 30th day of April. Certainly greater expedition could not have been expected. The fact that the petitioner permitted the purchaser of the stock of goods to remain in the store until the 15th day of May is not to be charged against the trustee. It may be remarked in passing that, if application had been made to liquidate the claim pursuant to section 63b, the proceeding would have been ineffective unless the claim were of such a nature that, being liquidated, it might have been proven under section 63a. Dunbar v. Dunbar, 190 U. S. 340, 350, 23 Sup. Ct. 757, 47 L. Ed. 1084. We have seen that the unearned installment of rent, although liquidated by a written lease, cannot be proven under section 63a, so that the proceeding to liquidate would have been unavailing in the instant case. For these reasons, the findings and decision of the referée must be affirmed.