The opinion
McCANDLESS, District Judge.
Although the petition in this ease prays for an order of sale, it has been treated at the argument more as advisory of the assignee than an application for the sale of the property. The estate is largely encumbered with both judgments and mortgages, all of the former subsequent in date to the latter. It is moved to dismiss the petition that the property may be sold by the assignee under his general *1223 powers, subject to existing legal liensand encumbrances. It is further moved to order a sale discharged of all liens except those given for security of the purchase money. We are not inclined to favor either of these propositions in the shape in which they are presented. The property should be sold for the purpose of paying the debts of the corporation. The proper inquiry for both the as-signee and the court is, on what terms will it bring most for the creditors? It is conceded that the lien for the purchase money should be protected. Why should not also the security given for the bond of the company in the hands of innocent holders? The judgment creditors dealt with them on the faith of the corporation, and with recorded mortgages staring them in the face. What equity can they claim over the mortgage creditors? As to the validity of the five hundred thousand dollar mortgage, which has been impugned at the argument, this is not the stage of the case at which to attack it, nor the proper mode of attack. It can be assailed, if it be vulnerable, at another time, and before the proper forum. As presented now it is a valid lien, and entitled to the protection of the court.
Entertaining these views, the motion to dismiss the petition is reiused, as also to sell discharged of all liens except the purchase money, and upon application the court will order a sale by the assignee, discharged of all liens and encumbrances, excepting the jexisting and recorded- mortgages.
[Now, August 13, 1S73, on motion of H. B. Swope, solicitor of the assignee, it is ordered that the assignee sell at public or private sale, as he may deem ■ most advantageous to the creditors,, the property described in his petition, divested -of all judgments and liens except the three recorded mortgages (being the mortgages for $250.000. $500.000. and $S.000„ Respectively): sale to be made on due notice,, in, accordance with the rules of the court.] 2
[From 30 Leg. Int. 272 .]