, FEDERAL REPORTER.
law ofthls state that the assignee of such a cerWicncte holds it suhject to all the infirmities by which it would have been affected in the hands of the tax purchaser. Light v. West, 42 Iowa, 138. It is insisted by counsel for respondents that the tax deed can be attacked on the ground of fraud in the sale only by the owner of the land, and not by a mortgagee. In support of thIs proposition section 897 of the Code of Iowa (1873) is cited. That sectio:q, among other things, provides "that in all cases where the owner of lands sold for taxes shall resist the validity of such tax title, ·such owper may prove fraud committed by the officer selling the same, or in the purchaser to defeat the same, and if frau<l'is so established such sale' and title shall be void." While this section gives a remedy only to the owner of the land, it cannot, in my judgment, be rightly held to deny a similar remedy to others. The complainant's right to recover in the comcase does not depend upon the statute'. If a fraud hag mitted, and by it the complainant has been injured, the remedy is provided by the general principles of equity jurisprudence. It cannot be presumed that the legislature of the state intended by the provision above quoted to deprive any person of a remedy for an actual' fraud which existed independently. of the statute; Suppose the case of a fraudulent combination to deprive So mortgagee of "his security by procuring a sale of the mortgaged premises for taxes without notice to the mortgagee, and without competition among bidders. Will it' be contended that in such a case the mortgagee could have no remedy, because a remedy in a similar case is given by statute to the owner? I think not. If the statute would bear such a construotion, it is more than doubtful whether it would have the effect to deprive this court of its equity jurisdiction in such cases. U. 8. v. Howland, 4: Wheat. 108; Dodge v. Woolsey, 18 How. 347; Barber v.Barber, 21 How. 583; Lawrence v. Clark, 2 McLean, 568; Boyle v. ,6 Pet. 648; Noonan v. Lee, 2 Blaok, 500. Decree for complainant.
IN BE BLUMER.
In re W. H.
& Co., Bankrupts.*
(Di8trict Oourt, E. D. Penn8ylfJania. May 3,1882.
AND SEPARATE ASSETS-COSTS.
Where the members of a firm are adjudicated batikt'upts,'the' costs of the proceeding must, under section 36 of the bankrupt act, (1l6ction 5121, Rev. 8t.·) be afte!. apportioned pro rata between the partnership deducting the portion of the costs chargeable tothep'llrtuership there is any balance of Pllitnership assets, however small, tile creditors will not beeutitled to share pare PM8U with the separll.te'd.etlitb1'&in'the ·dis'tribq. tion of the separate estates.
2. SAME. . .
Semble, that if there are partnership assets the the assignee, in a costs larger than the amount of such assets, vain attempt to realize more, will not entitle the partnetlJhip Creditors to share.with the separate Creditors in the distribution of the separate estates.
This ease came hefore upon the report of' the as to the assets to and the costs chargeable against.'tbe joint and separate estates oftha bankrupts respectively.. His repott showed the following fa(Jts : .. .' .
William H. Blumer, Jesse M. Line, and William ani trading as William .R.. Blumer & Co., were adjudicated bank:rup'ts.. amounts realized from the respective estates were as follows: · $ 3,438 51 From tbe partnersbip estate, ., separate estate of W. H. Blumer, 15,122 44 51,951 14 " J . M. Line, · " .. 23,32732 " " ., W. Kern, · · All of the estates were insolvent. The partnership creditors claimed that against the $3,438.51 realized from the partnership assetssbould be set off the following amounts: Costs of clerk, marshal, register, assignee, etc., in the bankruptcy proceedings, . · $4,777 06 Costs of proofs of debt against the joint estate, 1,358 00 JUdgment in favor of the United States against the partnersbip, 796 31 entitled to priority of payment, ·
As this would more than exhaust the partnership estate, they claimed that the case was to be treated as if there were no partnership assets, and that they should share in the separate estates pari passu with the separate creditors. This claim was resisted by the latter. It appeared that the large amount of tbe costs was owing to the fact that various circumstances-including, especially, the imperfect condition ot the bankrnpts' books-rendered necessary a protracted examination for the purpose of obtaining information with
.Reported b1 Frank P. Prlehatd, Esq., of the Philadelphia bar.