Page:Federal Reporter, 1st Series, Volume 10.djvu/115

 OLNEY V. TANNEE. ���103 ���did not appear or answer. The other defendants have answered, denying the jurisdiction of the court, the right of the complainant to instituts or to maintain in this court such a suit as this, and also denying the alleged fraudulent intent, or the legal invalidity of the assignment. �The cause is submitted on the pleadings and proofs. �By section 4979 of the Revised Statutea this court has juriadiction of any action "brought against an assignee in bankruptcy by any person claiming an adverse interest touching any property or rights of the bankrupt transferable to or vested in the assignee." �If the property assigned by Swartwout to Tanner in March, 18T7, ■was conveyed to him in fraud of creditors, as alleged in the bill, then, by the terms of section 5046, such property or its proceeds became "vested in the assignee in bankruptcy" when he was subsequently appointed, unless the appointment of the complainant as receiver of Swartwout in the state court, prior to the commencement of the .proceedings in bankruptcy, had already vested the title thereto in the receiver. �The proofs show that all the property, escept such as was foreclosed under outstanding mortgages, has been sold by the voluntary assignee, and that less has been realized than the amount of the receiv- er's judgment. If the plaintifE's claim is sustained, and he is ap- pointed receiver of said property in this suit for the benefit of his judgnaent creditor, the resuit will be that the whole property of the bankrupt will be applied upon the judgment of a single creditor, tj the exclusion of the assignee in bankruptcy and of all other creditors. In so far, therefore, as the case involves a claim of priority in the application of the assigned property or its proceeds to the judgment of Seaman exclusively, it is the case of a person claiming an interest in the property of the bankrupt adverse to the interests of the assignee in bankruptcy, within section 4979. The assignee in bankruptcy was a necessary party to the suit in order to make a valid sale of the real estate referred to in the bill', as well as to be bound by the distribu- tion of the proceeds ; and as the plaintiff's claim of title to the prop- erty is adverse to the interests of the assignee, and of all other cred- itors, the case seems to me to be within the very language of section 4979. That section does not confine jurisdiction to cases in which there is nothing else involved except an "adverse claim;" it embraces "all suits in law or in equity" between the assignee and persons claiming an adverse interest. Questions like those here presented can only bedetermined by plenary suit, (Smith v. Mason, 14 Wall. 419; ��� �