RAY

v.

NORSEWORTHY

Mr. Justice CLIFFORD delivered the opinion of the court. The theory of the plaintiff in error is that the title of the petitioners under the first mortgage and privilege was extinguished by the decree of the bankrupt court, and that the plaintiff acquired an absolute title to the land from the assignee in bankruptcy, discharged of all prior incumbrances and privileges.

1. Jurisdiction of the bankrupt courts extends to all cases and controversies arising between the bankrupt and any creditors who shall claim any debt or demand under the bankruptcy, to the collection of all the assets of the bankrupt, to the ascertainment and liquidation of the liens and other specific claims thereon, to the adjustment of the various priorities and conflicting interests of all parties, and to the marshalling and disposition of the different funds and assets, so as to secure the rights of all parties and the due administration of the assets among all the creditors.*

Rowers of like kind were conferred upon the bankrupt courts by the former Bankrupt Act, and the provision in that regard is expressed in substantially the same terms.†

Cases involving the construction of that provision were several times removed into this court for re-examination, in all of which it was held that the power conferred extended to all cases where the rights, claims, and property of the bankrupt, or those of his assignee, are concerned, because they were matters arising under the act and were necessarily involved in the due administration and settlement of the bankrupt’s estate.‡

So where the bankrupt court ordered the mortgaged premises to be sold, and directed that the mortgages should be cancelled and that the property should be sold free from incumbrance, rendering to the parties interested their respective priorities in the proceeds, this court decided that the bankrupt court did not exceed their jurisdiction, and affirmed their action.§ Corresponding decisions were made by the State court in construing the former Bankrupt Act, which are equally applicable to cases like the one before the court.*

Even if, by the true construction of the first section of the act, any doubt could arise as to the power of the bankrupt court to^authorize such a sale, it has been well held that it may be derived from the twentieth section of the same act. By that section it is provided that a creditor having a mortgage or pledge of real or personal property, or a lien thereon, for the security of a debt, shall be admitted as a creditor only for the balance of the debt, deducting the value of such property to be ascertained by agreement between him and the assignee, or by sale thereof, to be made in such manner as the court may direct.†

Beyond all doubt the property of a bankrupt may, in a proper case, be sold by order of the bankrupt court free of incumbrance, but it is equally clear that in order that such a proceeding maybe regular and valid the assignee must apply to the bankrupt court for an order to that effect, and must set forth the facts and circumstances which it is supposed justify the application, that the judge may decide whether or not the application shall be granted. Secured creditors in such, a proceeding must have due opportunity to defend their interests and consequently must be properly notified and summoned to appear for that purpose.‡

None of these conditions were fulfilled in this case. Instead of that the State court finds that the petitioner was never properly notified and that he was not made a party to the proceeding resulting in the order to sell the property in question free of his prior mortgage, and it was upon that ground that the State court decided that his rights were unaffected by the proceedings.

Concede to the fullest extent the powers of the bankrupt court to do everything specified in the Bankrupt Act, still it is clear that the mortgage and privilege of the petitioner could not be cancelled and displaced without notice nor without an opportunity to be heard, nor could the proceeds of the sale be adjudged to a junior mortgagee with or without notice, unless for some cause other than what is disclosed in the record.* Notice in some form must be given in all cases, else the judgment, order, or decree will not conclude the party whose rights of property would otherwise be divested by the proceeding.†

No man is to be condemned without the opportunity of making a defence, or to have his property taken from him by a judicial sentence without the privilege of showing, if he can, that the pretext for doing it is unfounded. Every person, as this court said in the case of The Mary,

‡

may make himself a party to an admiralty proceeding and appeal from the sentence, but notice of the controversy is necessary in order to enable him to become a party.§

Authorities to the same effect are very numerous, nor is there any well considered case which gives any support to the pi’oposition that the judgment, order, sentence, or decree of a court disposing of property subject to conflicting claims will affect the rights of any one not a party to the proceeding and who was never in any way notified of the pendency of the proceeding.ǁ

Such a sale made in such a manner without notice may, under some circumstances, be set aside as violating the rights of the prior mortgagee, but the mortgagee may, if he sees fit, affirm the sale and proceed to enforce his priority against the proceeds of the sale, which is the real nature of the proceedings in this case.*

Authority is doubtless possessed by the assignee to sell the property of the bankrupt, whether the same is or is not incumbered, but when he sells incumbered property without any special order from the court he sells the same subject to any and all lawful incumbrances, and can convey no better or higher interest than the bankrupt could have done. In such a case it will be taken for granted that the assignee sold only such right or title to the property as was vested in him as the representative of the bankrupt, and therefore that he sold it subject to the incumbrances.

Such sales may be made without notice to the secured creditor, but if the assignee desires to sell the property free of incumbrances he must obtain authority from the bankrupt court, and must see to it that all the creditors having liens on the property are duly notified, and that they have opportunity to adopt proper measures to protect their interests.†

Decree affirmed.

Mr. Justice BBADLEY did not sit in this case.

*

14 Stat. at Large, 517.

†

‡

Ex parte Christy, 3 Howard, 313; Norton v. Boyd, Ib. 437.

§

Houston v. City Bank, 6 Howard, 504.

*

Clark v. Rosenda,⁵ Robinson (Louisiana), 39; Conrad v. Priaur, Ib. 54; Lewis v. Fisk, 6 Id. 162.

†

In re Kirtland, 10 Blatehford, 515.

‡

Poster v. Ames, 1 Lowell, 316; Willard v. Brigham, 25 Louisiana Annual, 601.

*

Peychaud v. Bank, 21 Louisiana Annual, 202.

†

The Lottawanna, 20 Wallace, 201; Nations v. Johnson, 24 Howard, 205; Harris v. Hardeman, 14 Id. 339; Borden v. Fitch, 15 Johnson, 141; Buchanan v. Rucker, 9 East, 192.

‡

9 Crunch, 144.

§

Webster v. Reid, 11 Howard, 460; Boswell’s Lessee v. Otis, 9 Id. 350; Oakley v. Aspinwall, 4 Comstock, 515.

ǁ

Weed v. Weed, 25 Connecticut, 337; Means v. Means, 42 Illinois, 50; Hill v. Hoover,⁵ Wisconsin, 386; Wallis v. Thomas, 7 Vesey, 292; Water Power Co. v. Pillsbury, 60 Maine, 427; Lane v. Wheless, 46 Mississippi, 666; Hettrick v. Wilson, 12 Ohio State, 136; Vallejo v. Green, 16 California, 160.

*

Livaudais v. Livaudais, 3 Louisiana Annual, 454.

†

King v. Bowman, 24 Louisiana Annual, 506; Bump on Bankruptcy (7th ed.), 156; In re Kirtland, 10 Blatehford, 515.