In Babbitt v. Dutcher, 216 U. S. 102, 113, 30 Sup. Ct. 372, 377, 54 L. Ed. 402, 17 Ann. Cas. 969 (1909), the court, speaking through Mr. Chief Justice Fuller, said:

"There are two classes of cases arising under the act of 1898 and controlled by different principles. The first class is where there is a claim of adverse title to property of the bankrupt, based upon a transfer antedating the bankruptcy. The other class is where there is no claim of adverse title based on any transfer prior to the bankruptcy, but where the property is in the physical possession of a third party or of an agent of the bankrupt, or of an officer of a bankrupt corporation, who refuses to deliver it to the trustee in bankruptcy. In the former class of cases a plenary suit must be brought, either at law or in equity, by the trustee, in which the adverse claim of title can be tried and adjudicated. In the latter class it is not necessary to bring a plenary suit, but the bankruptcy court may act summarily, and may make an order in a summary proceeding for the delivery of the property to the trustee, without the formality of a formal litigation."

According to the doctrine thus stated by the Chief Justice, as the title or beneficial interest of the city of New York is adverse and is based upon a transfer antedating the bankruptcy, the trustee must bring a plenary action in which the claim can be adjudicated.

In Re Howe Manufacturing Company (D. C.) 193 Fed. 524 (1912), District Judge Evans, in discussing the summary jurisdiction of the bankruptcy court, said:

"While considering this question, we may also inquire whether relief could be given the trustee in this proceeding in bankruptcy proper, either summarily or by a plenary action (if we can regard the petition as such) filed therein. As we have seen, the trustee was directed to proceed against Jefferson. But it did not follow that it could introduce another action into this. proceeding in bankruptcy in order to do so. If in a proceeding in bankruptcy proper the trustee could intrude a separate suit against every debtor of the bankrupt, no difference what the demand might be, we should have a conglomeration of issues of the most remarkable extent and character in a bankruptcy proceeding. Nothing of the sort was contemplated by Congress, nor provided for by the act. On the contrary, the trustee, if he succeeds to the rights of the bankrupt, must do as the latter would have been compelled to do, and, if he have any claim to property or any right to recover upon any indebtedness alleged to be due from another person, he must, like every other litigant, institute his own separate and independent action in a court having jurisdiction of the subject-matter, and have his claim regularly adjudicated in due course of law. Being a trustee in bankruptcy gives him no special privileges in the courts. He stands there like other people. These general propositions seem to admit of no doubt. There are cases, however, which are exceptional, and in them summary proceedings may be resorted to, for example, in cases where property is in the possession of the trustee and therefore in custodia legis. If that possession is interfered with, summary action is admissible, and where the bankrupt refuses, or some agent of his refuses, to deliver to the trustee property belonging to the estate, a similar course is open. But these exceptions do not embrace cases where there are adverse claims to the property made in good faith, nor those in which there is an outstanding indebtedness of any character. Nor do they embrace a case where a third person has the property in his possession claiming it adversely, nor a case where recovery on a contract is sought, for in respect to all such cases it cannot be said that the debtor is in 'possession' of any property of the estate within the rule as to summary proceedings."

And in Re Bacon, 210 Fed. 129, 134, 126 C. C. A. 643, 648 (1913), we said:

"If it be ascertained by proper inquiry that a real adverse claim exists, no matter how ill supported it may appear to be, a court of bankruptcy cannot summarily decide as to the validity of the claim."

In Re Luken, 216 Fed. 890, 133 C. C. A. 94 (1914), the question was before the Seventh Circuit. The court said:

"In the present proceeding there is no conflict about the facts, and the trustee therefore contends that the bankruptcy court had summary jurisdiction to compel Steger to surrender possession by the summary process of a contempt order or other summary means. His argument is that, the

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legal proceedings being taken against the defendant therein while the defendant was insolvent, we might have no difficulty, the facts being undisputed, in determining that the adverse holder's claim of legal right to retain possession was so clearly without substance, so void of color, as to bring him within the summary jurisdiction of the bankruptcy court. But it seems to us that a controversy may be as substantial in regard to the legal rights of a party on undisputed facts as is a controversy wherein the only conflict is on the facts. Our observation and experience is that there are fully as many controversies in plenary suits over the question of legal rights on undisputed facts as there are controversies respecting the facts."

In Remington on Bankruptcy (2d Ed. 1915) § 1796, the author, in referring to the matter of summary jurisdiction, states that, if some third party claims a beneficial interest in the property which he has in his possession (except in certain instances with which we are not now concerned), "he need not come into the bankruptcy proceedings for his rights, and the trustee cannot bring him into the proceedings and he is entitled to be heard in a plenary action."

In Black on Bankruptcy, § 404, the law is stated as follows:

"Whenever a trustee in bankruptcy lays claim to money or property which is in the possession of a third person, and petitions for an order requiring its surrender to him, the court of bankruptcy has jurisdiction to cite such person to show cause why he should not be required to yield up the money or property to the trustee. And if the respondent denies that the property in question belongs to the estate in bankruptcy and sets up a claim of title in himself, the court has jurisdiction to inquire and determine whether or not such claim is genuine, really adverse, and interposed in good faith. If it shall determine that such claim is merely colorable or fictitious, frivolous on its face or plainly false, or manifestly pretended and without any foundation in law, it may proceed to make the order asked by the trustee; but on the other hand, if it shall be determined that the respondent's claim to the property is genuine and interposed in good faith and with the intention of supporting it, the court cannot proceed to inquire into the merits, but must dismiss the petition and remit the trustee to his remedy by a plenary suit."

The courts have held in numerous cases that a stranger to the proceedings in bankruptcy, who sets up an adverse title to property which is claimed by the trustee as assets of the bankrupt, cannot be compelled to submit his claim to adjudication in a summary proceeding in the court of bankruptcy provided his claim is made with the apparent intention of defending it in good faith and is not merely colorable, but is entitled to be heard in a plenary suit. Courtney v. Shea, 225 Fed. 358, 140 C. C. A. 382 (1915); In re McCrum, 214 Fed. 207, 130 C: C. A. 555 (1914); First National Bank v. Hopkins, 199 Fed. 873, 118 C. C. A. 321 (1912); Johnston v. Spencer, 195 Fed. 215, 115 C. C. A. 167 (1912); Cooney v. Collins, 176 Fed. 189, 99 C. C. A. 543 (1910); In re Horgan, 158 Fed. 774, 86 C. C. A. 130 (1907); In re Baudouine, 101 Fed. 574, 41 C. C. A. 318 (1900).

[1] We understand the rule in all such cases to be that if a real adverse claim exists, as distinguished from one which is merely color

able, the claimant cannot be compelled against his will to try the issue in the court of bankruptcy. Whether the claim is real or colorable does not depend upon whether it turns upon a question of fact or upon a question of law. Does the claim rest upon mere pretense of fact or of law? Is it put forward in good faith, and in that sense is it real? Or is it put forward in bad faith, and therefore unreal? If there is a real question either of law or of fact, the claimant need not submit it to the court of bankruptcy, unless he consents to do so; but the trustee must institute his independent action in a court having jurisdiction of the subject-matter and have the claim regularly adjudicated, as the bankrupt himself must have done, had bankruptcy proceedings not been pending.

Bankruptcy proceedings are a branch of equity jurisprudence, and the provisions of the Seventh Amendment securing a right to trial by jury are not applicable thereto. The issues involved in such proceedings are therefore to be tried by the court, subject to the right of the court in its discretion to submit any specific question of fact to a jury in which case the jury's determination is merely advisory, and subject to the further exception that the Bankruptcy Act expressly gives to the debtor resisting his adjudication as a bankrupt the absolute right to have the issues as to his insolvency and as to his having committed the act of bankruptcy charged determined by a jury. U. S. Compiled Statutes, volume 9, § 9603. But this right is personal to the bankrupt, and can only be had on his demand, and then simply as regards the two questions above mentioned. It is evident, therefore, that, if a trustee seeks to recover property held by an adverse claimant, the latter should have the same right as against him that he had as against the bankrupt to have his claim of title passed on by a jury in a plenary action, unless his claim is clearly colorable.

If, however, the claim does not rest upon a disputed question of fact, but rests upon a question of law, which must be decided in any event by a court, it is not so evident that upon principle it should be determined in a plenary suit, rather than summarily in the bankruptcy court. To allow the matter to be disposed of in a summary proceeding deprives the claimant of no constitutional right, not being contrary to due process of law. It is the general purpose and policy of the bankruptcy law to settle estates with expedition and without unnecessary expense. If an adverse claim which turns on a question of law is not to be settled in the bankruptcy court without the bankrupt's consent, it may cause delay in the settlement of the estate and increase the expenses incident thereto. But it does not follow for any of these reasons that a claim based on a question of law which is not colorable can be disposed of in a summary proceeding.

The District Judge in the case at bar arrived at the conclusion he did because of a misapprehension of two cases decided by this court, which he thought were intended to lay down the proposition that whether or not a summary order is the proper relief depends solely upon whether the question involved is one of fact or one of law. In the case of In re R. & W. Skirt Co., 222 Fed. 256, 138 C. C. A. 67 (1915), payment of a debt was conceded to have been made out of the bankrupt's estate after the petition in bankruptcy was filed and the

question was whether money so paid was recoverable in a summary proceeding. This court, speaking through Judge Coxe, said:

"This upon admitted facts is a question of law. The court would, therefore, have been justified in dealing with it in a summary proceeding and, in order that the estate may be speedily and economically settled, it should have done so. These views, we think, are supported by Lazarus v. Prentice, 234 U. S. 263, 266, 34 Sup. Ct. 851, 58 L. Ed. 1305; Everett v. Judson, 228 U. S. 474, 478, 33 Sup. Ct. 568, 57 L. Ed. 927, 46 L. R. A. (N. S.) 154; Bryan v. Bernheimer, 181 U. S. 188, 21 Sup. Ct. 557, 45 L. Ed. 814; Mueller v. Nugent, 184 U. S. 17, 22 Sup. Ct. 269, 46 L. Ed. 405."

While the question was one of law, it was purely colorable, and all that was actually decided was that an adverse claim merely colorable, though there was no disputed question of fact, but only of law, could be determined by summary order.

In Alco Film Corp. v. Alco Film Service of Minnesota, 234 Fed. 55, 148 C. C. A. 71 (1916), this court held that the District Court had jurisdiction to proceed by summary order to dispose of claims, the facts being undisputed. The District Judge had exercised his jurisdiction and in his opinion said:

"The first objection proceeds upon the theory that, where facts are undisputed, and only a question of law is involved, and the question of law is debatable, the person resisting is an adverse claimant. Such is not the law."

This court did not pass on the language quoted, but simply affirmed the orders holding that the objection to the jurisdiction had been waived. The adverse claim was clearly colorable.

In Re Michaelis & Lindeman, 196 Fed. 718 (1912), which was a case in the District Court for the Southern District of New York, the learned District Judge, after stating that there is no power in the bankruptcy court by summary order to divest a third party of any title (even a fraudulent one) asserted by him against the bankrupt or his trustee, added:

"But this does not prevent the entry of a summary order, where the only title set up rests, not upon any matter of fact, but upon a statement of law."

No authority is cited and no reason is given for this statement of the law.

In 7 Corpus Juris, p. 106, it is said that, when goods alleged to belong to the bankrupt are in the possession of a third person claiming to be the owner:

"The true rule as to such cases appears to be that the court of bankruptcy has jurisdiction to proceed summarily to the extent of ascertaining whether or not there is any foundation for the adverse claim, and if it appears to be without foundation it may order the property turned over to the trustee; but if it appears that there is some foundation for the adverse claim and questions of fact are involved, the summary proceedings can go no further and the right of possession must be tried in plenary action."

If the writer would have it understood that if the adverse claim has some foundation, and questions of law and not of fact are involved, it may be disposed of summarily, the authorities he cites do not support him; and we are not disposed to attribute to him any such intention. We do not feel ourselves concluded by the two previous decisions of this court, for we do not understand them, or either

of them, as intending to assert that an adverse claim which is not colorable can be summarily settled in the bankruptcy court against the consent of the claimant, provided it raises an issue of law and not of fact. We find no support for that view in the decisions of the Supreme Court, or in those of any of the Circuit Courts of Appeals or in any of the District Courts, except in the Southern district of New York.

[2] The question raised by the adverse claimant clearly involves a substantial question of law, and therefore it cannot be determined in a summary proceeding, except with the claimant's consent.

The order of the District Judge is reversed, and the motion of the trustee is denied.

HOUGH, Circuit Judge (dissenting). This petition to revise should be dismissed; it was prematurely or improperly taken. The referee refused jurisdiction upon inspection of pleadings. The court reversed his order, and instructed him to proceed with an ascertainment of facts. This was in accordance with the ruling in Re Goldstein, 216 Fed. 888, 133 C. C. A. 91 (C. C. A. 7th), to the effect that the District Court may pursue the summary method to the point of ascertaining that the alleged adverse claim is substantial and not merely colorable. No trial was ever had, and the order directing it is the subject for review. As we have no means of knowing whether the claim is either adverse or colorable, except an ex parte statement, there is nothing to review. For this reason I dissent from the judgment given.

But the opinion of this court, dealing with what I consider a moot point, asks and answers the question: What is a colorable adverse claim? In so doing the prior decisions of this court have been disapproved; therefore I dissent from the opinion. It seems to be admitted (and is undeniable) that under Babbitt v. Dutcher and Mueller v. Nugent, supra, the bankruptcy court may not proceed summarily to adjudicate upon the rights of an adverse claimant whose claim is more than colorable and based upon a transfer antedating the bankruptcy. Whether in this case there ever was a transfer antedating bankruptcy is the question of fact, as to which no evidence has been taken. This renders inquiry into the meaning of the words "colorable" and "adverse" necessarily in vacuo.

The proposition laid down for law is that of In re Luken, 216 Fed. 890, 133 C. C. A. 94, and is equivalent to saying that, assuming no disputed question of fact, any debatable proposition of law constitutes its maker an adverse claimant. This in turn identifies "arguable" or "debatable" with "colorable"; the latter being the word of controlling and numerous decisions. A colorable question of law is a meaningless phrase. As a modifier in legal parlance, "color" means appearance, as distinct from reality. Colorable law is certainly no more than "color of law," which "does not mean actual law." McCain v. Des Moines, 174 U. S. 175, 19 Sup. Ct. 644, 43 L. Ed. 936. Both "color" and "colorable" always connote pretense, sham, or falsity. Chicago, etc., Co. v. Allfree, 64 Iowa, 500, 20 N. W. 779; Virginia v. De Hart (C. C.) 119 Fed. 628.

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