In re Francis-Valentine Co.

DE HAVEN, District Judge. This is an application made by the trustee of the estate of the Francis-Valentine Company for an order commanding and directing one Eichard I. Whelan, his deputies and employes, not to interfere in any way with any of the property of said estate in bankruptcy, or with the trustee’s possession thereof. 954 The respondent does not claim title to the property adversely to the Francis-Valentine Company, but he insists that, prior to the commencement of the proceeding by which the Francis-Valentine Company was adjudged bankrupt, the property had been by him, as sheriff of the city and county of San Francisco, levied upon under writs of attachment and execution issued out of the superior court of the state of California, in and for the city and county of San Francisco, in certain actions pending in that court, in which the Francis-Valentine Company was a defendant; and it is further claimed by him that this court has no jurisdiction, in a summary proceeding like this, to inquire into his right to withhold the possession of said property from the trustee. In my opinion, this court has jurisdiction, as there is no question here of conflicting titles to property; it being conceded that the property belonged to the Francis-Valentine Company, and that the legal title thereto, subject, of course, to all lawful liens, passed by operation of law to the trustee in bankruptcy. The actions in the state qourt were all commenced, and the writs of attachment and execution issued and levied, within four months prior to the filing in this court of the petition in bankruptcy against the Francis-Valentine Company, and the liens obtained thereby became, under subdivision f of section 67 of the bankruptcy act of 1898, null and void when that company was adjudged bankrupt. Such being the case, the respondent, whose only claim is based upon the proceedings in the state court, is not entitled to the possession of the property levied upon by him, as against the trustee of the bankrupt. Whether the respondent is entitled to have the costs incurred by him in the attachment proceedings paid out of the proceeds arising from any sale of the property made by the trustee is a question not necessary t'o be passed upon at this time. If it should be conceded that he has such right, it still cannot be admitted that he has the right to .withhold the possession of the property from the trustee for the purpose of enforcing such demand. Application granted.