Page:Federal Reporter, 1st Series, Volume 6.djvu/73

 OLIVEE V. OUNNINGHAM. 61 �be further proceeded in until the assignee in bankraptey was made a party ; that the assignee was not in the situation of a mere purchaser pendente lite, as the equity of redemption was caat upon him by law. It was f ollowed in other cases — 1 Barb. Ch. 246 ; 2 Barb. Ch. S96 ; 3 Barb. Ch. 360 ; 1 Sandf. Ch, 135; 3 MeLean, 487 — which were alsocitedby counsel. �If the cases referred to are to govern it, it is manifest that the assignees of the bankrupt defendant, to whom the title to any of the property involved in the suit has corne, should be made parties in order to reach the interest held by them. �But, as we understand the opinion of the supreme court of the United States,— E(/s«er v. Gaff et al. 13 N. B. E. 546, 91 U. S. 521, — we are not at liberty to follow the New York cases, or the views expressed in 3 McLean. �Thomas and James Gaff in 1868 instituted suit to foreclose a mortgage against McClure. Pending the foreclosure pro- ceedings he was declared a bankrupt upon a petition filed pend- ing the suit, and an assignee was appointed. The decree of foreclosure and sale was rendered nearly two months af ter the adjudication that MeClure was a bankrupt, and about a month afterthe appointment of the assignee. �Gaff purchased at the sale, received the master's deed, and the sale was duly confirmed. They then brought a suit in ejectment against the mortgagor's tenant, who defended on the ground that ail proceedings in the foreclosure suit since the appointment of the assignee in bankruptcy were absolutely void, because he was not made a defendant. �The supreme court says: "But for the bankruptcy of Mc- Clure, by the decree and sale the title would have vested in the purchaser, and this would have related back to the date of the mortgage. " The inquiry is then made, is there anything in the bankrupt law which takes the title to the premises ac- quired by the assignee out of this rule ? �It was maintained by counsel that, because the assignee in bankruptcy is vested by the assignment under the statute with the legal title, there remains nothing from that time for the decree of foreclosure to operate on. The court, however, says : "If this be true in this case it mus^ be equally true in ��� �