CHAPTER X. PROCEDURE BY WHICH TRUSTEE IN BANKRUPTCY SELLS REAL ESTATE AT PRIVATE SALE. SECTION 372. The source of the trustee's authority to sell. 373. The appraisal of the real estate. 374. The manner in which the sale is conducted. 375. The order of the court ap pointing appraisers. 376. The oath of appraisers, the appraisement and return of the appraisers. 377. The petition to sell real estate at private sale, subject to incumbrances. 378. The order to sell real estate at private sale subject to incumbrances. SECTION 379. The entry confirming such sale. 380. The petition for sale of real estate by public auction. 381. The order of the court authorizing sale at public auction. 382. The petition for sale of real estate at public auction, subject to liens. 383. The order and decree of the court authorizing such sale. 384. The deed from the trustee to purchaser at trustee's sale of real estate in bankruptcy. Sec. 372. The source of the trustee's authority to sell. In every case where real estate of a bankrupt is to be sold under the national bankruptcy act, the petition and schedules must have been filed and all of the procedure of the act complied with up to and including the appointment of a trustee. Under the present bankruptcy law, the power of the trustee is derived from the authority given the trustee to collect and reduce to money the property of the estate.1 1 Section 47 of the Bankruptcy Act of 1908. It is said by Black on Bankruptcy, that, "The bankrupt law of 1867 conferred express authority upon assignees in bankruptcy to make sale of real and personal estates, either on their own motion, in certain cases, or by order and direction of the court, and prescribe the manner and effect of such sales." Black on Bankruptcy, 159. Sec. 373. The appraisal of the real estate. The real estate of the bankrupt must be appraised. The number of appraisers must be three, and they must be disinterested. The appraisers must be sworn, as in other cases, and they must return their appraisement to the court.2 Sec. 374. The manner in which the sale is conducted. The sale can be had at either public or private sale. Such sale is entirely under the direction of the court. The trustee, when a sale is desired, files his petition in the case, asking for authority to sell. The sale cannot be for less than threefourths of the appraisement.3 The sale can be made subject to the wife's dower and to liens and incumbrances. This sale subject to incumbrances is usually asked when the liens and incumbrances amount almost to the value of the real estate, and there is not much to be gained by the sale for the creditors. However, the power to sell real estate is discretionary, and it may or may not be exercised as the court may deem proper. It sometimes happens that the real estate is not sold and the lienholders are left to work out their rights in the State courts.* But the usual and better way is for the court or the referee to sell the real estate free of every lien and incumbrance, as is done in the State courts. In such instances, as is the case in the State courts, the liens and various claims 2 Section 70b of the Bankruptcy Act. See Section 375 for form for order of court appointing appraisers; see Section 376 for form of the oath and return of the appraisement. 3 Section 706, Bankruptcy Act. See Section 377 for form of petition to sell real estate at private sale subject to liens and incumbrances; see Section 378 for form for order for sale of real estate at private sale; see Section 380 for form of petition for sale of real estate at public auction; see Section 383 for order of court authorizing sale at public auction, subject to liens; see Section 384 for deed by trustee to purchaser of real estate. 4 See 5 Cyc. 383, citing Sessions v. Ramodka, 145 U. S. 29; Sparhawk v. Yerkes, 142 U. S. 1; Glanny v. Langdon, 98 U. S. 20; In re Cogly, 107 Fed. 73, 5 Am. Bank. Rep. 731. will attach to the fund for distribution. The sale cannot be made even in this manner, if such sale will result in injury to the general creditors or to the injury of a lienholder." Sec. 375. The order of the court appointing appraisers. IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DIVISION. No. In Bankruptcy. This day came the trustee in bankruptcy and represents to the court that it is necessary to a complete settlement of the estate, that the interest of the bankrupt in the real estate set forth in the schedule filed herein should be appraised, and asked that the court appoint three appraisers. Upon consideration whereof the court hereby appoints and to act as such appraisers. Referee in Bankruptcy. Sec. 376. The oath, the appraisement and return of the appraisers. IN THE DISTRICT COURT OF THE UNITED STATES FOR THE they will honestly and truly appraise the real estate belonging to the within bankrupt to the best of their ability and make due return thereof to the court. In re Styer, 3 Am. Bankruptcy Rep. 424. Notary Public, My commission expires County, State of Oklahoma. We, the undersigned appraisers in the above entitled cause, hereby represent to the court that we personally inspected and viewed the premises belonging to the bankrupt, to-wit: (Here describe said real estate), and we do hereby fix the value of the same at $ Sec. 377. The petition to sell real estate at private sale. IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF OKLAHOMA, In the Matter of Bankrupt. DIVISION. Respectfully represents the estate of the aforesaid bankrupt, that the following described real estate mentioned and set forth in the schedule of said bankrupt (Here describe it) be sold. Said trustee asks that the same be sold at private sale for the following reasons, to-wit: said real estate has been appraised at $, and there is a mortgage of $ against said real estate, together with interest thereon from the 19—; day of that there is also a lien for taxes on said real estate in amount more than the sum of $ ; that one has offered to pay to the said trustee the sum of $ for said real estate, and agrees to assume and pay said mortgage, taxes, assessment and penalties charged as a lien thereon, and that it would be impossible, in the opinion of your trustee, to sell said real estate in the open market for more than sufficient to pay the liens against the same, and respectfully represents that it is desirable and for the best interests of the estate to sell at private sale said real estate as aforesaid. WHEREFORE he prays that he may be authorized to sell said for the sum of $ real estate at private sale to said on the assumption by said purchaser of said mortgage, taxes, assessments and penalties. being duly sworn, says that he is the trustee aforesaid, and that the allegations contained in the foregoing petition are true as he verily believes. Sworn to before me and subscribed in my presence, this day of A. D. 19-. My commission expires Notary Public. Sec. 378. The order to sell real estate at private sale. This day this cause came on to be heard upon the application of the trustee herein for permission to sell the real estate hereinafter described at private sale to at terms hereinafter set out, and the same was submitted to the court upon said application and the evidence, and the court finds that said real estate was appraised at $- ; that the same is mortgaged to the sum of $together with interest on said sum from the day of 19; that it will be difficult, if not impossible, to find a purchaser for such an interest so incumbered, that the same cannot be sold at public sale, and that it is to the interest of said estate to accept the offer of said to take said interest of said trustee therefor the sum of $to-wit: for cash; also said that may be added to said taxes. and to pay the said to-wit: in the manner following, is also to pay any penalties at private The application of said trustee is therefore granted and said trustee is hereby ordered to convey to the said sale, on the terms hereinabove set out, all the right, title and |