In re Dole

WHEELER, District Judge.

This is a review of a decision of the referee denying a petition of the Caledonia National Bank for the payment of rents accrued and accruing on the bankrupt’s real estate to the petitioner as mortgagee. As to the rents accrued before adjudication, the cashier of the bank appears to have notified the bankrupt that he must collect the rents and pay the same on the mortgage, which the bankrupt agreed to do, and upon this the bank relied and was controlled. There does not appear to have been any notice to the tenants, or other possession taken by the 'mortgagee, and without such the rents would belong to the mortgagor. His agreement to collect them was merely an agreement to collect what was his own, and the agreement to pay over was no more than an agreement to pay his own debt, and neither or both would have any effect upon the title to the rents accrued or accruing. Something more was necessary in order to make the rents become the property of'the bank. It was the same as if he had agreed to sell any other property of his own and pay the proceeds upon his debt, which, if done, would pay so much, but, if not done, would not at all affect the* title to the property. What was agreed to be done was within his own right, and did not make him an agent of the bank about doing what would be for himself. The agreement upon performance would have been effectual, but unperformed left the rents as they were before. Upon the bankruptcy proceedings, the rents went with the other property to the trustee. After the adjudication the rents continued to accrue to the trustee, and would so continue until something should be done that would change the accruing Jo the mortgagee. Nothing appe?rs to have been done in that direction but to give notice to the tenams *927 to pay to the mortgagee. The property and its revenues were afjer that in the custody of the trustee as an officer of the court, which could not be affected adversely but by application to the court, and no such application was made. The trustee had nothing to do but to collect the rents as a part of the estate in bankruptcy. He would not be warranted in giving them up, otherwise than with the property itself.

Decision of referee affirmed, without prejudice.