In re Fuller

[93] the trustee. The bankrupts objected to turning over the books and papers thus receipted for by their attorneys to the trustee. Thereupon on April 24, 1923, Judge Mack made a second order directing the attorneys for the bankrupts and the bankrupts to turn over these records and papers so withheld by them to the trustee. n April 21st the district attorney of New York county had subpoenaed the trustee to produce the books and papers of the bankrupts he them had in his custody and on the 24th of April offered them in evidence in the Court of General Sessions of New York as evidence against E. M. Fuller under an indictment arising out of the business of the bankrupts. On the 25th of April Judge Mack granted an application for a stay pending proceedings for appeal to this court and an application for a stay here, and Judge Nott, presiding in the state court, adjourned the trial there until April 30th. Proceedings for appeal to this court have now been begun under the authority of Perlman

v.

United States, 247 U.S. 7, 38 Sup. Ct. 417, 62 L. Ed. 950, and the application for a stay of Judge Mack's two orders has now been made. A man who becomes a bankrupt, or who is brought into a bankruptcy court, has no right to delay the legal transfer of the possession and title of any of his property to the officers appointed by law for its custody or for its disposition, on the ground that the transfer of such property will carry with it incriminating evidence against him. His property and its possession pass from him by operation and due proceedings of law, and when control and possession have passed from him, he has no constitutional right to prevent its use for any legitimate purpose. His privilege secured to him by the Fourth and Fifth Amendments to the Constitution is that of refusing himself to produce, as incriminating evidence against him, anything which he owns or has in his possession and control; but his privilege in respect to what was his and in his custody

[94]

ceases on a transfer of the control and possession which takes place by legal proceedings and in pursuance of the rights of others, even though such transfer may bring the property into the ownership or control of one properly subject to subpoena duces tecum. These conclusions follow from the principles announced by this court in the Matter of Harris, 221 U.S. 274. 279, 31 Sup. Ct. 557, 55 L. Ed. 732, and Johnson v. United States, 228 U.S. 457, 33 Sup. Ct. 572, 57 L. Ed. 919, 47 L. R. A. (N. S.) 263. In considering the correctness of Judge Mack's orders, it is wholly immaterial what stipulation had been entered into between the receiver and the bankrupts in regard to the use to be made pending the receivership of the books and papers or what sanction Judge Hand's action had given the stipulations. With the appointment of the trustee both the title and the right to possession of such books and papers passed to him and Judge Mack's orders properly confirmed this result. The receiver, the bankrupts, and their attorney must yield possession and title to the trustee. Neither can accompany the delivery he is bound by law to make with any effective conditions restricting use of the books, papers, or other property of the bankrupts' estate as evidence against them. The application is denied. People ex rel Clyde v. Gilchrist [43SCt501,262US94,67LEd883]  43 S.Ct. 501 262 U.S. 94  67 L.Ed. 883 PEOPLE ex rel. CLYDE v. GILCHRIST et al., New York State Tax Commission.

No. 318.

Argued and Submitted April 17, 1923.

Decided April 30, 1923.

Mr. Arthur E. Goddard, of Brooklyn, N. Y., for plaintiff in error.

Messrs. Francis W. Cullen, James S. Y. Ivins, and Claude T. Dawes, all of Albany N. Y., for defendants in error.

Mr. Justice HOLMES delivered the opinion of the Court.