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to collect the same from Bushby and Berkeley. It also appears that these attorneys took summary proceedings against Bushby and Berkeley on behalf of certain alleged clients named Nicholas, Bach, and Bullenkamp. These motions came on before Judge Blanchard, and were denied, and no further proceedings have ever been had. . This was in the spring of 1910.
It is on such testimony that Bushby, asks that Berkeley be held bankrupt, unless he can show that, exclusive of transferred or concealed property, he was worth at the time of filing petition more than $50,000, plus the $8,000 advanced by Bushby as his personal claim.
On this point, which is a vital point in the matter, the report of the master is silent. I am not informed as to the grounds of Judge Blanchard's decision; and it is but an inference from this record that the judgment of the Appellate Division in Re Larney must have proceeded upon the terms of the retainer. When no other client, except Larney, has come forward with a demand for costs, except those who were defeated a year and a half ago, and have acquiesced in defeat, it is certainly a far cry to hold that Berkeley (and, of course, Bushby also) is indebted in $50,000 to people not one of whom can be found in this proceeding to advance and prove the debt.
Bushby denies that he owes anything to clients, either individually or as a partner, yet on his own showing, if Berkeley owes the money, he (Bushby) must also owe it. Such a position on his part does not induce belief in the actual existence of debts to this amount.
As for the admission contained in the account filed by Berkeley, the whole account must be taken as rendered; one part is just as good as another, and no better, for purposes of evidence against Berkeley.
On the whole document it is plain that he was endeavoring, not to declare his relation to ex-clients, but his relations to an ex-partner, and that was all he was obliged to do. What it means is this: That when he settled with Bushby he insisted upon settling also their relations to their clients. Whether he had a right to insist upon this in that particular suit is not a matter that concerns this court, but it does govern the interpretation of the document. It is therefore held that there is no sufficient proof in this case that Berkeley is indebted to anybody, unless it be to Bushby.
Into the pecuniary relations between Bushby and Berkeley I do not find it necessary to go at length. Most of the record is made up of the recriminations of these two members of the bar, oftentimes acting as their own counsel and testifying as witnesses at the same moment. If any evidence were needed of the impropriety of such procedure, this record furnishes it in abundance.
I shall assume, but not find, that Berkeley was, on April 21, 1910, indebted to Bushby in the sum of not more than $8,000.
It may be noted here, however, that no ground is seen for asserting as a debt provable on April 21, 1910, Bushby's costs in the accounting proceeding. They have never been taxed; they have never even been awarded; non constat that they ever will exist. Certainly there was no form of proceeding in which Bushby could have asserted his right to these costs against Berkeley at the time he filed his petition in bankruptcy.
Bushby must show, first, that the acts of bankruptcy alleged in the petition were committed. Admittedly the transfers were made, admittedly the transferee was the alleged bankrupt's father, and the conduct of Berkeley when he was examined as to these conveyances was plainly such as to encourage belief in his intention to put the real estate in question beyond the reach of creditors, present or future. Upon the whole case I am of opinion that the transfer from son to father was a conveyance in fraud of creditors, and am of opinion that such conveyance was made in order to prevent, if possible, what Berkeley believed to be at the time Bushby's intention, nameiy, to saddle him with all the claims from ex-clients that he (Bushby) could induce or procure to advance and press their claims. Whether this suspicion of Bushby was correct is not to the point, and no finding is made thereon; but I am convinced that this was Berkeley's motive, and it was in contravention of the statute.
From this it results that it was incumbent on Berkeley to show that, within the meaning of the bankruptcy statute he was solvent on April 21, 1910, .
and on this point the finding of the master is against him. Some testimony has been taken since report filed, but even without that evidence I am of opinion, as matter of law, that Berkeley was worth more than $8,000 on April 21, 1910. He had at that time a note of Mr. George Gordon Battle's for $2,000 and a mortgage on property in Virginia for $3,000. Both of these securities were worth par, and the amounts thereof were subsequently collected.
It is true that when they were collected the proceeds thereof were put into the account of "Estate of S. M. Waugh, L. M. Berkeley, Administrator"; and it is admitted that this was done in order to prevent creditors from getting at said proceeds. This may be very wrong, but it is entirely beside the point. The fact that the proceeds were concealed some months after petition filed is no proof that the securities themselves were not in the possession of and assets of Berkeley on April 21, 1910.
At or before petition filed Berkeley was also the owner of a $6,000 mortgage on property shown to be worth more than that amount and situated on Longwood avenue, in this city. This mortgage had been in existence for some years, and had vested in Berkeley by the conveyance to him of Bushby's interest, which had been joint with Berkeley's. While Berkeley owned this mortgage, he received conveyance of the fee from one Baldwin, who held the same. The conveyance of Baldwin to Berkeley is subject to this $6,000 mortgage, and two days later Berkeley conveyed the fee to his father, subject to the same mortgage. In this transaction, put through nearly two years before petition filed, the master finds such lack of "absolute good faith" that "the ruse should not succeed." The force of this reasoning is not perceived; a deed carries no more than it purports to, and merger of title is a question of intent. So far as intent is concerned, if, in June, 1908, Berkeley was intending to conceal his property in the name of his nonresident father, it would certainly have been more appropriate to use words which confirmed instead of prevented merger, and not to leave on the record the title to a $6,000 mortgage outstanding in himself.
Documents, however, are produced showing that Berkeley, before taking Baldwin's deed, assigned the mortgage to a friend, and after conveying the fee to his father took a reassignment of the mortgage. Such a proceeding as this is entirely consistent with the language of the deeds by Baldwin to 'Berkeley and Berkeley to his father. The assignment and reassignment, however, are attacked as having been concocted long after the actual conveyance, and to be in effect forgeries. On this vital point the master expresses no opinion. He apparently assumes that the attacked documents are valid, but sweeps them away with the proposition that the whole apparatus of papers "wrought no actual change of title." If they wrought no actual change of title, then the title remained in the alleged bankrupt. Decision here, however, is rested, first, on the proposition of law that there was no merger of mortgage in fee, and, second, on the finding of fact that the evidence regarding the falsity or forgery of assignment and reassignment of mortgage is not convincing.
It results that on April 21, 1910, Berkeley was worth, exclusive of property conveyed in fraud of creditors : The Battle note......
$2,000 The Minor Virginia mortgage...
3,000 The Longwood avenue mortgage...
6,000 Moneys deposited with the chamberlain of New York, alleged to be his in the petition...
$12,000 Therefore he was solvent without any reference to fraudulently transferred property, so far as all the provable debts shown in this proceeding are concerned.
 There is one other matter in this record which demands attention. The first page of a volume of testimony amounting to 714 pages contains a stipulation that "the fees of the special master herein be increased from the rate allowed by law to the rate of $10 per hour or fraction thereof devoted by him
on any day to the taking of testimony and preparing his report herein." It does not appear whether the special master availed himseif, or sought to avail himself, of this stipulation. It is therefore only noted that such a stipulation as this is in violation of the rules of this court and those of equity practice. A master is entitled to $5 a day for his services, or to such extra or additional compensation as the court may award. It is probably not within the power of the court to prevent the voluntary payment of additional compensation. It is within the province of the court to mark the receipt of such additional compensation, without the sanction of the court, as something wrong. These statements are made after consultation with the other Judges of this court. The almost inevitable result of an agreement such as this is shown in the diffuse and ill-regulated proceedings contained in the volume of evidence submitted.
It would ordinarily be a matter of course to dismiss this petition, with costs. In this case, however, costs and expenses have been piled up by both parties equally. Especially have many of defendant's refusals to answer been calculated to excite suspicion and protract the proceedings. As it is, the petition will be dismissed. without costs, and the order of dismissal will contain a proviso that the $5,000 produced in court by Berkeley on argument, and now deposited with the clerk of this court, be returned to him.
H. B. Singer, of New York City (Max D. Steuer, of New York City, of counsel), for appellant.
L. M. Berkeley, of New York City, pro se,
PER CURIAM. The District Judge has discussed at considerable length the various questions presented in this long record. We fully concur in his reasoning and conclusions.
The decree is affirmed.
REBER v. CONWAY.
(Circuit Court of Appeals, Third Circuit February 18, 1913.)
No. 1,640. LANDLORD AND TENANT (8 157*)-FIXTURES-CONSTRUCTION OF LEASE,"DE
Where property which had been previously used as a large and modern livery stable was leased to be used as an ice cream factory requiring many structural changes in the building, so that, on the termination of the lease, the property would not be suitable for use again as a livery stable, a provision in the lease that all improvements or additions made by the lessee should not be detached from the property, but should remain for the benefit of the lessor, covered all machinery and other trade fixtures attached to the property by the lessee, and was not limited to mere structural changes in the building; the word "detached" being used as the antithesis of "attached" to cover property attached to the building, etc.
[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. 88 571, 572, 574-607; Dec. Dig. & 157.*
For other definitions, see Words and Phrases, vol. 3, p. 2034.) Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania; John B. McPherson, Judge. •For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
In the matter of bankruptcy proceedings of Bahls Ice Cream & Baking Company. From an order sustaining a referee's determination, awarding certain fixtures to the landlord under the lease (195 Fed. 986), J. Howard Reber, trustee, appeals. Affirmed.
J. B. Colahan, of Philadelphia, Pa., for appellant. H. Edgar Barnes, of Philadelphia, Pa., for appellee. Before GRAY and BUFFINGTON, Circuit Judges, and RELLSTAB, District Judge.
GRAY, Circuit Judge. This is an appeal from an order of the court below, sitting in bankruptcy, affirming the report of the referee in bankruptcy and decreeing that the property which is the subject of this dispute did not belong to the appellant, J. Howard Reber, Receiver and Trustee in Bankruptcy, but to Thomas Conway, Jr., the owner of the premises on which said property is installed.
By an agreement dated January, 1910, Albert H. Manwaring let the premises, on which was situated a large brick structure, to a partnership trading as Bahls & Co. At the time the lease was made, the building was fitted up and adapted to use as a large and modern stable. The lease provided that the premises should be used as ar "ice cream manufactory.” Bahis & Co. went into possession and en tirely converted the building from its previous condition into a structure specially adapted to the single purpose of an ice cream manufac tory. The changes involved the construction of a raised concrete Hoor, three or four feet above the street level, extending the length of the building, and the installing of a system of connecting exposec and unexposed piping, the building of an elevator shaft and the installing of a complete equipment for ice cream manufacture, with freezers, mixer, motors and pumps, an ice crusher, &c. These machines were afterwards replaced by larger and heavier machines, which required for their accommodation extensive changes in the building and large brick supporting piers under the floors.
Subsequently, October 24, 1910, a corporation called the “Bahls Ice Cream & Baking Company" was created under the laws of Penn sylvania, which bought out the partnership of Bahls & Co., including: the leasehold of the premises, and attorned as tenant, paid the ren. reserved in the lease and remained in possession of the premises under the lease, until the receiver for the company, pursuant to the proceedings in bankruptcy, was appointed on January 10, 1912.
After the adjudication of the company as a bankrupt, March 1, 1912, Reber, the said appellant, became in due course trustee of the estate of the said Bahls Ice Cream & Baking Company.
On October 31, 1911, the owner, Manwaring, gave 90 days' notice to the lessee of his intention to terminate the lease February 1, 1912, the date of the expiration of the term, because the rent had fallen
The premises were conveyed to the appellee herein, Thomas Conway, Jr., by deed of the lessor, on January 12, 1912, and the claim for arrears of rent was made on the same day by the said company.
On January 19, 1912, notice was given to the lessee of the forfei
ture of the lease for the nonpayment of rent, and a copy of the notice was sent to the receiver, with a request that possession of the premises, their improvements and additions, be surrendered. The receiver refused to surrender the premises and laid claim to the improvements made thereon, being the property now in dispute.
February 16, 1912, on petition of the receiver, the court made an order for a special reference, to determine the ownership of the property mentioned. On March 1, 1912, the corporation was adjudged a bankrupt, and Reber, the receiver and appellant, was appointed trustee in bankruptcy. The report of the special referee was filed on March 7, 1912, which found that the ownership of the property in dispute was in the lessor and owner of the premises. This report was affirmed by the court on April 19, 1912, and a decree entered on May 15, 1912, dismissing the exceptions thereto, from which decree this appeal has been taken.
The lease contains the following provision:
“And it is hereby covenanted between the lessor and the lessee for themselves, their respective heirs or successors and assigns, as follows:
"(3) The lessee shall keep the demised premises in good condition during the continuation of this lease, remove all ashes, rubbish and refuse matter therefrom, and with the termination of this lease to deliver up the said prem. ises to the lessor in as good condition and repair as the same now are, reasonable wear and tear and damage by accidental fire excepted. All improvements or additions made by the lessee shall not be detached from the property, but shall remain for the benefit of the lessor."
The report of the learned referee contains a clear and adequate discussion of the law and facts involved in the question presented, and the opinion of the court below dismissing the exceptions thereto and affirming the report of the referee is no less clear and emphatic in its approval of the reasoning upon which the conclusion of the referee is founded.
We do not question that, under the generally accepted law in this regard, as well as under the decisions of the Pennsylvania courts, all of the items embraced in this dispute are trade fixtures and, in the absence of any contract_to the contrary, are removable from the premises, by the lessee. But, as said by the Supreme Court of Pennsylvania in Isman v. Hanscom, 217 Pa. 135, 66 Atl. 329:
“The question of trade or tenant fixtures does not enter into the case, and hence need not be considered. The lease, which is the contract between the parties, determines the ownership of the property in question, and hence the rights of the parties thereto depend entirely upon the proper interpretation of the instrument.
In such case, the contract is the law made by the parties themselves, and that must determine their rights."
What, then, does the lease mean, and how is the law of the contract thus made by the parties themselves to be interpreted ?
It is to be noted that the building at the time of the lease was a stable, and was to be fitted by the lessee for an ice cream manufactory. To accomplish this, the whole character of the building had to be changed, and the lease contemplated that it should be so changed. At the termination of the lease, it could not be used as a stable, and it was therefore evidently contemplated that it should return to the