Reed v. Terhune. It is not contended here that the general creditors as such would be entitled to participate in a distribution of this fund, or that the court would be authorized to direct the declaration of a dividend from this fund; but it is claimed that the general creditors may reach the fund in part in the indirect way by obtaining payment therefrom of a part of the expenses of the administration of the general estate for the benefit of the general creditors. It The provision with respect to the commissions payable to assignees, the allowance of counsel fees, etc., is found in Sec. 6357, Rev. Stat. provides: "Before any dividend is declared, the assignee or trustee may be allowed the following commission upon the amount of the personal estate collected and accounted for by them." Now dividends are to be declared from the funds or property to be distributed to the general creditors. The purpose, it seems to us, is very evident to require the payment of these fees and this compensation from the fund which is to be distributed through dividends to the general creditors. The pro vision is, in effect, that before any dividend is declared, the amount to be distributed is to be ascertained after making these and other proper allowances and deductions. This precise question may not have been decided by the Supreme Court of this state, though we think that certain decisions come very near to deciding it; and we think that the logic of these decisions carried out and applied to a case like this, requires that our decision shall be against the contention of the assignee here; in other words, that the law is (and if it has not been announced distinctly, it has been discussed sufficiently to indicate the view of the Supreme Court), that the fees and allowances of the assignee for services rendered to the general estate, and for the benefit of the general creditors, are not be paid from funds or property subject to specific liens which rest upon property at the time the assignment is made. The precise point was decided in Richter v. Shoenfeldt, 7 Dec. (Re.) 120. I read from the opinion delivered by Judge Cox, being the decision of the Hamilton county district court. In the course of the decision, the judge uses this language: "It was claimed by counsel that they were entitled to be paid a pro rata out of the claim of such creditors, whether the creditor's claim was a prior lien to the fraudulent conveyance or not. Such, in the opinion of this court, is not the meaning of the assignment law. The creditors from whose claim such fee is taken are the creditors whose rights were intended to be protected in the case. These proceedings in no way benefited the parties who held mortgages or liens on the property before the fraudulent conveyance, nor did the fraudulent conveyance affect their rights. As to creditors who had no liens, the proceeding did preserve the property, and gave them equality in distribution after the first liens were paid. For this benefit the statute permits counsel fees to be paid out of the fund secured, and the court was of opinion that the common pleas did not err in their order." Another case is found, Moore v. Feldwisch, 7 Dec. (Re.) 467, from which I extract this: "The case now comes up on motion of the assignee to be allowed out of the proceeds of sale, which are insufficient to pay the holder of the liens an amount for his own compensation as assignee, and for the services of his counsel. "The application does not extend to general services of the assignee and counsel, but to services claimed by them in this case. 53 O. C. D. Vol. 12. These serv Lucas Circuit Court. * * ices did not consist in anything done by the assignee, for the property was not sold by him but by an officer of the court. Nor do they consist in anything that could be properly charged as costs. *If paid it must be paid out of the fund necessary for payment of the liens. Whether this should be done is not a matter of discretion, but depends upon the estate taken by the assignee under the assignment, as compared with that held by the holders prior to the assignment. "The estate taken by the assignee was subject to the liens. All there was to assign was what should remain after satisfaction of the liens. "This action under the statute is simply for the ascertainment of priority, and that the residue of the fund should be returned to the probate court to be distributed under the assignment act. Under the assignment act, before any dividend is declared the costs and expenses of administering the trust are to be paid. But this is a payment to be made out of the general fund; and if the liens and incumbrances are satisfied there would be no general fund. The services for which this claim is made not being such services as can be properly denominated costs, and the application being in effect that counsel fees and compensation to the assignee shall be allowed as costs; and there being no provision in the statute, except that which has reference to the payment out of the general fund, and there being no general fund until the incumbrances have been paid, the court is of the opinion that the application should be refused." In the case of Huber Manufacturing Co. v. Sweny, 57 Ohio St. 169 [48 N. E. Rep. 879], the question was as to the priority of lien of certain chattel mortgages. The assignee was a party to the controversy as it was presented in the Supreme Court. He was there, as appears from the opinion of the learned judge who announced the decision, somewhat in his own behalf, and more especially as a representative of the general creditors; but the court finding that however the controversy might be determined as between the contesting lienors the whole fund would be absorbed in satisfaction of the liens, has this to say with respect to the standing in court of the assignee and the general creditors: "The facts show that either claim will, with the costs, exhaust the entire proceeds of the sale which are in dispute. So that in no aspect of the case are the general creditors interested in the result of the suit, for in no event can any of the proceeds be applied to their claims. Nor is the assignee, although a party here, and although the controversy had its origin in his application, interested in the slightest degree in the controversy between the mortgagees." Had the court entertained the opinion that an allowance made to the assignee for his services as such, of fees which otherwise must be paid out of funds going to general creditors, might be paid in part from the proceeds of this property, certainly it would not have used this language. In the case of Andrews v. Johns, 59 Ohio St. 65 [51 N. E. Rep. 880], a question very closly related to this is discussed at considerable. length. In that case the assignee had brought certain mortgaged premises to sale, and it had been bid in by the mortgagee. The sale was confirmed without the mortgagee having paid any money to the assignee on account of the purchase, but the assignee in his accounts made return as if he had received the proceeds of the sale, and proceeded to charge the percentage of the proceeds of sale to which he would be entitled Reed v. Terhune. under the statute, against the mortgagee, who was called upon to pay into court the amount that was required to discharge the claim of the assignee for his percentage and some other expenses; and it was held (reading from the syllabus): "The term 'proceeds of real estate sold,' found in Sec. 6357, Revised Statutes, implies money arising from the sale actually received and accounted for as such by the assignee. Upon money so received he is entitled to the percentage compensation named in the section above cited. "But, where the land offered for sale by the assignee is bid in by a mortgage creditor whose mortgage is the first lien, and the bid is less than the amount of the debt so secured, taxes and costs, the mortgagee is not required to pay over to the assignee, nor into court, the amount of such bid, and in such case the assignee is not entitled to the percentage compensation provided in said section." From the discussion of the case by Judge Spear, it seems to us very clear that an application of the principles which were applied there, if applied in this case, would result in a denial of the claim of the assignee. In other words, if the purchaser in Andrews v. Johns, supra, had actually paid into the hand of the assignee the amount of the purchase price, had he been other than the mortgagee, the assignee might have been entitled to some compensation for his services from that fund; he might have been entitled to what would have been reasonable and right for the services which he had performed for and on behalf of the mortgagee as such; but we think it is clear that the court would not have allowed the payment to him from that fund of any compensation for other services, viz: services performed for the general estate or for the general creditors. I shall not take time to read this discussion, although it is very interesting. I will read from pages 77 and 78; what appears to us to be a very distinct, satisfactory and reasonable answer to the contention of counsel for the assignee here that it would be a great hardship, and perhaps an injustice, to the assignee, to require him to settle up an insolvent estate where the whole of the proceeds might go to the lienors and leave the assignee without compensation. As I have said, we are not required in the case at bar to decide that that would be so or should be so. It would be reasonable and perhaps lawful to allow to the assignee fair compensation for such services as he may have performed of benefit to the mortgagee in bringing the property to sale and in bringing the proceeds applicable to the mortgage debt into court; but it appears that in the case at bar the assignee has been allowed full compensation for that service, and the only question involved is with respect to his right to have further compensation from this fund for services to be rendered in winding up the estate, and services for the benefit of the general creditors. I read from page 77: "Upon the proposition that by the construction of the sections affecting assignments here made, an injustice results to the assignee in that he is denied compensation for labor which he is required to perform, it would seem sufficient to say, as suggested by counsel, that the hardship is not greater than in the case of a second mortgagee who forecloses his mortgage only to see the first mortgagee take all the proceeds, leaving his expenses to be borne without any results; or the case of an ad Lucas Circuit Court. ministrator, as in Stone v. Strong, 42 Ohio St. 53, where the first mortgagee is the purchaser. Besides, the assignee is not compelled to perform the services. He accepts the trust voluntarily and with whatever risk may attend its performance. If he finds it burdensome, unremunerative, he may at any time resign. In response to this the suggestion is offered that the situation in respect to the question of compensation would not be altered by a resignation, for it would then become the duty of the court to appoint a trustee who would be entitled to compensation upon the same basis. Of course such trustee would be entitled to whatever compensation the law gives, as well as an assignee. In the administration of the estates of deceased persons the statute permits, under certain circumstances, that administration be committed to one of the principal creditors, and the practice to so appoint is not uncommon. Possibly practical difficulties might stand in the way of the appointment of a mortgage creditor as trustee of an insolvent estate, but every consideration of fairness would entitle him to a potent voice in the selection of such trustee, and in making such choice it would not be difficult, it is here suggested, to find persons abundantly competent who would be satisfied to do the work for the chance presented of obtaining the legiti mate compensation allowed by law. Ordinarily the duties involve routine work only, and that which may be performed by persons of fair acquaintance with legal business, and only rarely do they involve work of a difficult order, or calling for the exercise of more than ordinary talent or experience. Presumptively, at least, the provisions of the statute relating to assignments were enacted in the interest of creditors, and it is the duty of all courts to give such construction to the statute, and to direct the administration of the trusts in such manner, as will reasonably secure this end. Complaints are common of objectionable practices in this respect in some localities where, it is charged, the effort seems to be to conduct assignments as though they had been provided, primarily for the benefit of assignees and their attorneys. The faith of the people in the impartial administration of the law by the courts would be enhanced by a correction of the abuse, if it exists, and by the adoption of methods of administration by which the rights of creditors may be fully protected and enforced, and the trust estates not depleted by extravagant charges and costs; and no injustice to any would result." In the case at bar it appears that the assignee has performed extensive services which involved a great deal of labor and skill, and that if he pursues the program that he appears to have marked out in the settlement of the estate, much more labor will devolve upon him, so that there can be no criticism of the assignee upon the ground that he is attempting to magnify his office, or do that which should not properly be done in the case, or charge exorbitant fees; yet it seems to us that the rule of law that must obtain in cases of this kind is, that the liens which rest upon property at the time the assignment is made must be respected, and cannot be impaired by anything that may be done in the course of the settlement of the estate; and that if the assignee is not willing to administer the estate and take his chances of other funds arising from the sale of unencumbered property to satisfy his claims for compensation, that he should decline the work-decline to serve. We believe that this is the only safe and just rule, though it is quite apparent that in many cases it may turn out that the assignee may, in the light of the results, be seriously disappointed, and may do a great deal of work for Reed v. Terhune. which somebody should compensate him, but for which, in all probability, he will receive no compensation. We think, however, that his compensation should not be at the expense of one who has a specific lien upon property prior in point of time to the date of the assignment to him. Holding these views, the judgment of the court of common pleas will be affirmed. JUDICIAL SALES-OIL LEASES. [Lucas (6th) Circuit Court, September Term, 1901.] Haynes, Hull and Parker, JJ. DANIEL W. MURPHY V. WILLIAM HARDEE ET AL. 1 PRODUCT of Oil WellS PASS IN JUdicial Sales. The policy of the appraisement laws and the decisions of the courts, excluding growing crops from the sale of real estate, is to encourage agriculture and prevent farm lauds from lying fallow and unproductive pending litigation and upon the theory that the land only is appraised, but the rule respecting the product of mines or oil wells, is different. In judicial sales of oil leases, the oil produced belongs to the purchasers from the day of sale, and if the sale is consummated and perfected by confirmation such right and title relates back to the date that the sale is actually made by the officer of the court. 2. PRODUCTIVENESS SHOULD BE INCLUDED IN APPRAISEMENT. The value of oil leases depend in a large measure upon the amount of oil that might be produced from lands covered by the leases. The sale of the lease carries with it the right to produce the oil and the purchaser obtains this right. Therefore, an appraisement in a judicial sale should include the value of the leases in view of their productiveness. 3. PURCHASER ENTITLED TO ACCOUNTING. The purchaser of lands at judicial sale must suffer the loss of deterioration of the premises purchased occurring between the date of sale and confirmation and payment of the purchase money. Likewise, he is entitled to any gain, fruitage or appreciation thereof. Hence, an oil company, having obtained a decree of court subjecting to sale certain premises of which it has voluntarily remained in possession and which it has operated for oil from the day of sale to the day of confirmation, they must account for the net proceeds thereof during such interim, less operating expenses. 4. OPTION OF OFFICER MAKING The Sale. In judicial sales of real estate the official making the sale, as the representative of the creditors interested therein, has an option, upon unreasonable delay of the purchaser, to return "no sale," and prevent confirmation, and proceed to resale and require the first purchaser to pay any damages resulting therefrom; or to return the sale as made and proceed by civil action for the purchase money or by attachment for contempt; but the purchaser has no choice, save to pay the money in pursuance of his bid. 6. LEASES Subject to Sale ON FORECLOSURE. While oil leases are personal property and subject to levy and sale as ordinary personal property, such leases are also subject to sale under an order of court upon a decree in foreclosure of mortgage or other lien. 6. Doctrine OF RELATION BACK TO DATE OF SALE-Quaere. Whether the doctrine of relation back to date of sale applies in case of an execution sale not requiring confirmation, quaere. |