Flanders v. Thompson. estate, subjected the property, though standing in the name of Bell, to a resulting trust in favor of the bankrupt estate: Perry on Trusts, sec. 128; Trench v. Harrison, 17 Simons, 111; Gaines v. Chew, 2 How., 619; McDonogh v. Mur doch, 15 How., 367. This same doctrine is recognized in Louisiana: Hall v. Sprigg, 7 Martin, 244; Rhodes v. Hooper, 6 La. An., 357; Giannoni v. Gunny, 14 La. An., 632; Livingston v. Morgan, 26 La. An., 646. The doctrine has been recognized and applied by the bankrupt court in this case, and Bell, who took the title in his own name to real property purchased with the money of the bankrupt estate has been compelled to convey to the assignee. Now, the question is, does a judgment creditor of Bell who credited him long before he became assignee or acquired title to the property in question, and who has parted with nothing on the strength of Bell's apparent ownership of the property; does such a creditor stand in any better plight than Bell himself? A judgment creditor is not a bona fide purchaser who is protected against a resulting trust: Story's Eq. Jur., sec. 410, note; Burgh v. Burgh, Rep. Temp. Finch, 28; Matter of Howe, 1 Paige, 125; Keirsted v. Avery, 4 Paige, 14; Towsley v. McDonald, 32 Barb., 611; Moyer v. Iinman, 13 N. Y., 180; Rodgers v. Bonner, 45 N. Y., 379; Birchard v. Edwards, 11 Ohio State, 84; State Bank v. Campbell, 2 Richardson (Equity, S. C.), 179; Dunlap v. Burnett, 5 Smedes & Mar., 702; Money v. Dorsey, 7 Smedes & Mar., 15; Dozier v. Lewis, 27 Miss., 679; Watkins v. Wassell, 15 Ark., 73; Thomas v. Kennedy, 24 Iowa, 397. But it is claimed for defendant that by the jurisprudence of this state as settled by the code and the decisions of the Supreme Court, he in whose name the title is recorded must be held to be the owner as to third persons, and the latter are never required to look beyond the records. This may be true so far as it applies to bona fide purchasers or to creditors who become such after the paper title has passed to their debtor. But, as we have seen, Thompson is Flanders v. Thompson. not a bona fide purchaser, nor is it claimed that the debt due him was contracted by Bell while the latter held the paper title to the property in question. To yield to the doctrine claimed by defendant would be to overturn the law of resulting trusts which is as firmly estab lished in Louisiana as anywhere else: Livingston v. Morgan, 26 La. An., supra and other cases above cited. The right of the defendant to enforce his judicial mortgage upon the property in question is based on article 3328 of the Civil Code, which declares that, "The judicial mortgage may be enforced against all the immovables which the debtor actually owns or may subsequently acquire." It is very clear that Bell never was the actual owner of the property purchased with the funds of the bankrupt estate. Ile was the apparent owner only. For when the bankrupt court ascertained the facts about his purchase of the property it compelled him to convey it to the bankrupt estate. The defendant relies upon a number of cases decided by the Supreme Court of Louisiana, but none of them seem to me to be in point. The case of Tulane v. Levinson, 2 La. An., 787, is supposed to be conclusive of the point under discussion. In that case George F. Barney was the owner of a lot. On the 19th of March, 1842, he conveyed the lot by public act to Jacob G. Bartlett. The deed was not recorded in the office required by law in order to give effect to its inscription. A judgment was obtained against Barney on the 28th of April, 1842, and recorded in the proper office on the 3d of May following. The property was sold on an execution issued upon. this judgment, and purchased by Tulane, and the court held the title of Tulane was good. Now, in that case the debt on which the judgment was rendered had been contracted while the legal and equitable title was in Barney. Barney was the actual owner. His deed to Bartlett never took effect. Bartlett had an equity and the judgment creditor an equity, and the court merely decided that in such a case the legal title should prevail. In other words, the decision is that when one holding the legal title to property contracts debts which are in suit, and reduced to In re Ludwigson. judgment, his property is liable to seizure on the judgment when obtained unless he has divested himself of title by an effectual conveyance. In the case under consideration, Thompson has not the shadow of an equity. His claim is the naked claim that his judgment recorded years before Bell was ever appointed assignee should be paid out of the funds of the bankrupt estate which Bell had misappropriated. But it seems to me that the case of Tulane v. Levinson is fairly offset by the later case of Scott v. Hayden, 9 La. An., 336. In this case Hayden held the legal title to certain real estate. Hennen had recovered judgment against Hayden and had it recorded, and the question was whether the judg ment was a lien upon the share of Mrs. Hayden's succession in the property, the same having been acquired during the community, and nothing appearing upon the record to show that the succession had any interest in the property. The court held that the registry of the judgment created a judicial mortgage on Hayden's share and not on the share belonging to Mrs. Hayden's succession. This case is later than the case of Tulane v. Levinson. I am unable to come to the conclusion that the jurisprudence of this state would sanction so unjust and inequitable a claim as that set up by the defendant. His claim to be paid out of the proceeds of this sale of the property cannot bo allowed. IN RE JOHN H. LUDWIGSON. 1. A bankrupt court should not make an order for the sale of real estate returned by the bankrupt, on the ground that the title is in dispute, when the liens upon the property exceed its value. 2. Where the title to one undivided half only of certain real estate returned by the bankrupt is in dispute, the bankrupt court is not authorized by section 5063 of the Revised Statutes to order a sale of the entire property. 3. It is doubtful whether the order, in a summary proceeding, of a bankrupt court directing the sale of real estate returned by the bankrupt,” In re Ludwigson. on the sole ground that the title thereto is in dispute, can be considered that due process of law to which the party who disputes the bankrupt's ownership is entitled. PETITION OF REVIEW. The petition was filed by the children of the bankrupt, John II. Ludwigson, for the review of an order of the district court, made by virtue of section 5063 of Revised Statutes, directing a sale of certain real estate returned by the bankrupt on his schedule as a part of his estate. The section referred to provides that "whenever it appears to the satisfaction of the court that the title to any portion of an estate, real or personal, which has come into possession of an assignee, or which is claimed by him, is in dispute, the court may, upon petition of the assignee and after such notice to the claimant, his agent or attorney, as the court shall deem reasonable, order it to be sold, under the direction of the assignee, who shall hold the funds received in place of the estate disposed of, and the proceeds of the sale shall be considered the measure of the value of the property in any suit or controversy between the parties in any court. But this provision shall not prevent the recovery of the property from the possession of the assignee by any proper action commenced at any time before the court orders the sale." Ludwigson, the bankrupt, placed upon his schedule of property surrendered, certain real estate situated in the city of New Orleans. This property was acquired by him during his coverture with his wife, to whom he was married in August, 1850, and who died in 1867. The petitioners in review, the children of Ludwigson, claimed that the said real estate was community property, and that on the death of their mother, the wife of Ludwigson, one undivided half of it descended to them as her heirs. The assignee of Ludwigson on the 17th day of March, 1875, filed a petition in the district court praying for an order to sell said real estate, free of incumbrances. But it having been made to appear that the liens upon the property far exceeded its value, the court refused to make the order prayed for, and dismissed the petition. In re Ludwigson. Afterwards, on April 5, 1876, the assignee filed his petition for the sale of said real estate, on the ground that the petitioners in review had set up a claim to an undivided half thereof, and prayed that the same might be sold as property which was claimed by the assignee and the title whereof was in dispute. The district court, upon this petition, ordered the entire property to be sold. The purpose of this petition is to review this order. Mr. Joseph P. Hornor, for petitioner. Mr. A. Micou, for assignee. WOODS, Circuit Judge. The order of the district court is erroneous in that it orders a sale of property which is not in dispute. It appears from the petition filed in the district court that the heirs of Mrs. Ludwigson set up title only to the one undivided half of the property in question, and that the title to such undivided half only is in dispute. Yet the order is for the sale of the entire estate. As the order is based on the sole ground of disputed title, the order to sell should be limited to the property in dispute. But should any portion of the property have been ordered to be sold? The same reason which induced the district court to refuse an order to sell the property free of incumbrances, to wit, that the incumbrances largely exceeded the value of the property, and that the general creditors had no interest in having the property sold, ought to have prevailed in this case. The property appears from the evidence to be worth only $4,000, and the incumbrances are three or four times that sum. The general creditors have no interest in the property, and the assignee no concern in bringing it to sale. And the fact that the title to property is in dispute is a good reason why the court should be slow to order a sale, unless it be absolutely necessary to the proper administration of the bankrupt estate. The power to sell the estate of another simply on the ground that it is claimed by an assignee in bankruptcy, is a high-handed one. Whether a sale ordered by a bankrupt court in a summary proceeding, and solely on |