tended to be the actual contract to be entered into; and, besides, it is quite apparent that Maxwell, in the transactions in question, was not the agent of the owners of the timber to be sold, and had no authority to sign a contract in their behalf, or to impose upon them terms and conditions in respect to the sale of their property.

As to Exhibit B, signed by the parties themselves, and decreed by the court below to be a valid contract, a more difficult question is presented, and its correct determination depends upon the effect to be given to the limitation of time placed by the vendors at the time of the deposit in escrow of the paper, within which it was to be accepted, or the payment of the purchase price of the property sold was to be made, and whether or not at that time they had the right to impose such conditions. Ordinarily the question of the precise time within which money may be paid is immaterial, where time is not the essence of the contract, and there has been no specific direction made in that regard; that is to say, where a contract has been entered into between the parties, with the exact time of payment not specified, or, if actually specified in the first place, arbitrary and unreasonable limitations as to when payments shall be made, or, in the latter, the failure to pay on the precise day designated, will not be allowed to work a forfeiture of such contract, or of rights arising thereunder, provided the condition can be subsequently performed without unreasonable delay, and no circumstances have intervened that would render it unjust or inequitable to give such relief. The cases of Cheney v. Libby, 134 U. S. 77, 10 Sup. Ct. 498, 33 L. Ed. 818, and Camp v. Parker, 34 C. C. A. 55, 91 Fed. 710 (the latter a decision of this court), referred to by appellees, are illustrations of this doctrine. In each of the cases cited a contract had been entered into, and the questions determined related to the effect of failure to comply with the provisions of the contract. The present case, as we view it, turns upon whether or not the vendors entered into any contract save the one filed as Exhibit B with the bill, and delivered conditionally to the bank, or so bound themselves as to prevent them from imposing any condition or limitation as to time of acceptance of contract and payment of money thereunder at the time of delivery of said Exhibit B. If they did not, then, confessedly, they had the right to impose such conditions as they saw fit, as to how, and the time within which, they should sell their timber. Story's Equity Juris. § 777a, and cases cited. A careful examination of all the letters and telegrams between the parties shows that the vendors neither authorized the execution of the paper filed as Exhibit A, nor gave authority to Maxwell to sign any paper, or impose upon them any terms or conditions whatever, in reference to the sale in question, and that, so far as they are concerned, they were neither bound by or committed to any proposition of sale at the time of the deposit of the paper Exhibit B with the bank, and that on that day they had the right to enter into, or not, as they thought proper, with the appellees, or with Mr. Maxwell on his own account, or in their behalf, an agreement to sell their timber; that, being in this position, they could impose, as of right, such conditions and limitations as to terms.

of payment or otherwise as they saw fit. The contract inclosed by them to the bank was a unilateral contract, in which the vendors stipulated that payment should be made within a specific time, or the paper signed by them, whatever it may be termed-whether an option to buy or a contract of sale-should be returned to them; and it was so returned at the expiration of the time, and some eight days before the appellees offered to pay for the property.

Pomeroy on Contracts, § 387, in discussing when, and when not, time becomes essential in the performance of unilateral contracts, says:

"Where the contract is really an offer on one side, with a provision that this offer must be assented to and accepted, when a mere acceptance is contemplated, or payment must be made, when payment was the act of acceptance contemplated, at or before a specified date, then, of course, the act of assent or of payment must be done within the prescribed time, and time is, from the very form of the contract, essential. If, therefore, a vendor agrees to convey if payment be made at or before a given date, or if an option is given, which is to be accepted by payment within a given time, then the time of the payment is certainly essential. In fact, payment is a condition precedent to the vesting of any right in the vendee."

The case of Waterman v. Banks, 144 U. S. 394, 12 Sup. Ct. 646, 36 L. Ed. 479, in its essential features, is similar to the one at bar, and would seem to be conclusive of the controversy at issue here. There, by agreement of the 14th of May, 1881, R. W. Waterman agreed that at any time within 12 months from that date, upon demand, he would execute to J. S. Waterman a good and sufficient deed to an undivided 2/100 of certain mines, with improvements thereon, or to be placed thereon. J. S. Waterman did not demand a deed within the year, but in March, 1883, assigned the agreement to Abbie L. Waterman. After the death of J. S. Waterman, she brought a suit for specific performance, and recovered; the lower court holding that the agreement passed a present interest, and required a deed to be made on demand at any time, before or after the expiration of one year. Upon appeal the lower court was reversed, the Supreme Court holding that the conditions of the contract were not fulfilled within the time specified therein. Mr. Justice Harlan, speaking for the court, approved the following quotation from Potts v. Whitehead, 20 N. J. Eq. 55, as the correct rule:

"There can be no question but that, when an offer is made for a time limited in the offer itself, no acceptance afterwards will make it binding. Any offer without consideration may be withdrawn at any time before acceptance, and an offer which in its terms limits the time of acceptance is withdrawn by the expiration of the time."

And in discussing the question as to when and when not time was the essence of the contract, Mr. Justice Harlan further says:

"The rule is well expressed in Lord Ranelagh v. Melton, 2 Drewry & Smale, 278, 281, where it was said: 'No doubt, if an owner of land and an intending purchaser enter into a contract, constituting between them the relation of vendor and purchaser, and there is a stipulation in the contract that the purchase money shall be paid and the contract completed on a certain day, this court, in ordinary cases, has established the principle that time is not of the essence of the contract, and that the circumstances of the day fixed

for the payment of the money and the completion of the purchase being past does not entitle either party to refuse to complete. On the other hand, it is well settled that, when there is a contract between the owner of land and another person, that, if such person shall do a specified act, then he (the owner) will convey the land to him in fee, the relation of vendor and purchaser does not exist between the parties unless and until the act has been done as specified. The court regards it as the case of a condition on the performance of which the party performing it is entitled to a certain benefit, but in order to obtain such benefit he must perform the condition strictly. Therefore, if there be a day fixed for its performance, the lapse of that day without its being performed prevents him from claiming the benefit.' "

Reference may also be had, as illustrative of this doctrine, to Stitt v. Huidekoper, 17 Wall. 384, 21 L. Ed. 644; Insurance Co. v. Young, 23 Wall. 85, 23 L. Ed. 152; and other cases from the state and federal courts might be cited almost without number.

For the reasons herein mentioned, the decree of the lower court will be reversed, and the cause remanded to that court, with instructions to enter a decree dismissing the complainants' bill, with costs. Reversed.

In re UNION TRUST CO.

In re NEW ENGLAND PIANO CO.

(Circuit Court of Appeals, First Circuit.

No. 483.

May 15, 1903.)

1. BANKRUPTCY-POWERS OF COURT-ORDERING SALE OF MORTGAGED PROPERTY. A court of bankruptcy is not without jurisdiction to order the sale of property of the bankrupt free from incumbrances because it is subject to a mortgage for such an amount as to render it doubtful whether the equity of redemption is of value.

2. SAME.

The word "estate," as used in Bankr. Act 1898, § 2 (Act July 1, 1898, 30 Stat. 545, c. 541 [U. S. Comp. St. 1901, p. 3420]), authorizing courts of bankruptcy to "cause the estates of bankrupts to be collected, reduced to money and distributed," is to be construed as covering all property in the possession of the debtor when the proceedings are instituted, and not as limited to the resultant interest of the bankrupt therein.

8. SAME-PETITION FOR REVISION-MATTERS REVIEWABLE.

The question whether a court of bankruptcy erred in ordering a sale of property free from incumbrances, on the ground that it was covered by a mortgage which left no equity of redemption of value to the estate, cannot be reviewed by a Circuit Court of Appeals on a petition to revise in matter of law, where it involves questions of fact as well as law. 4. SAME-SALE OF MORTGAGED PROPERTY.

The property in question on this petition is of the value of about $20,000. It was in the possession of the bankrupt at the time of the adjudication of bankruptcy. It is claimed entirely by a mortgagee and in part by the trustee. It is of such a character that there is good reason for maintaining that it could not be sold otherwise than in lump, except at a very great sacrifice. The questions between the mortgagee and the trustee involve serious legal problems, the settlement of which might

11. See Bankruptcy, vol. 6, Cent. Dig. § 365.

13. Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.

postpone the disposition of the property for a very considerable time, and the expense of keeping is disproportionately large: Held, that an order of the District Court, directing a sale of the entire property without prejudice to the conflicting claims of the mortgagee and the trustee to the proceeds, was justifiable.

Petition for Revision of Proceedings of the District Court of the United States for the District of Massachusetts, in Bankruptcy.

Robert W. Nason and George L. Barnes, for petitioner.

Godfrey Morse and Lee M. Freedman (Paul M. Hubbard, on the brief), for the trustee.

John F. Simmons, for New England Piano Co.

Before COLT and PUTNAM, Circuit Judges, and BROWN, District Judge.

PUTNAM, Circuit Judge. This comes before us on a petition to revise the proceedings of the District Court for the District of Massachusetts directing a sale, free from incumbrances, of certain property in the possession of the bankrupt corporation at the_time the petition in bankruptcy was filed against it. The Union Trust Company, petitioner, holds a mortgage on the whole or a portion of the property ordered to be sold. It was duly notified to appear before the referee in response to the petition for sale, was heard by the referee, and was afterwards heard in the District Court. There is therefore no question of jurisdiction of the kind raised in Ray v. Norseworthy, 23 Wall. 128, 23 L. Ed. 116; and, moreover, no question is made that this is not an appropriate proceeding to bring the matter before us. Therefore we have not specially considered either of these matters of jurisdiction.

The property the District Court ordered to be sold was constituted, in the main, of parts of pianos which were on hand for the purpose of being manufactured, or were in process of manufacture, and which it was claimed in the District Court were of little value except when manufactured into pianos of the style made by the bankrupt corporation. It also appeared that, if the property is employed in the manufacture of the kind of pianos heretofore made by the bankrupt corporation, it would probably be worth very nearly the inventory appraisement, but if sold at auction, or to some person who could not so employ it, it would probably not realize 50 per cent. thereof. It was also said that the expense of keeping the property is very large, so that, if the keeping was continued, it would probably very materially impair its value. Of the property thus ordered to be sold, something more than $20,000 in value was acquired by the bankrupt since the execution of the mortgage. Apparently the entire property, if held by the mortgage, would not realize the amount secured thereby, so that in that event the estate in bankruptcy would have no interest therein. The three essential facts which apparently appealed to the District Court in ordering the sale were, first, the question what portions of the property were covered by the mortgage; second, that, for the reasons stated, the property could not be sold, except in lump, unless at a great sacrifice; and, third, the expense

of keeping the property pending litigation with reference thereto. The fact, also, is so apparent that even this court cannot shut its eyes to it, that property of this character, if partly covered by the mortgage, and partly not so covered, would be so commingled as to cause delay, and possibly litigation, in separating one portion from the other.

At the time the petition in bankruptcy was filed, sundry attachments rested on the property, and in pursuance of section 67f of the bankruptcy act of July 1, 1898 (30 Stat. 565, c. 541 [U. S. Comp. St. 1901, p. 3450]), the District Court has undertaken to preserve those attachments, so far as it can do so, for the benefit of the general creditors. In view of this fact, and in view of the necessity, therefore, of giving a construction to that particular provision of the statute, and of ascertaining its practical application and effect-results which probably could not be reached except by the court of last resort-and in view, also, of the fact that the decisions of the federal courts and the state courts do not entirely agree as to the effect of provisions in mortgages with reference to subsequently acquired property, and of the question which line of decisions should be applied in cases like that at bar, it is very apparent that the court in bankruptcy might reasonably foresee that there would not only be difficulties in separating the property, as we have already described, but also serious legal problems in various directions, which, unless the property was sold by summary process, might postpone its disposition for a very considerable length of time.

It was claimed at bar that the record is such that we could determine on this petition whether or not the subsequently acquired property is held by the mortgage; that, if it is, the value of the property, in any aspect, would not equal the mortgage debt; that consequently it is clear, from any point of view, that the District Court ought not to have ordered the sale; and that therefore we ought to enter a decree reversing its action. To this there are several an

It is true that ordinarily the court in bankruptcy ought not to interfere in this way where it is apparent that the estate has no equity of redemption of value, but this cannot be held to be universally true, for reasons which we have no occasion to state. Moreover, as this petition is framed, this question of the relations of the mortgage to the subsequently acquired property has not been presented in such way as to justify our considering it; and, what is a more serious difficulty, it involves, apparently, both law and fact. It is enough, however, to say that it is not before us, and that our conclusions, and whatever we may observe in this opinion, are absolutely without prejudice to anything as to the merits of the controversy which may hereafter arise.

The first proposition of the petition is that the District Court had no authority or jurisdiction to order a sale of the property in question free and clear of incumbrances. The petitioner concedes the force of the decisions of the Supreme Court in In re Christy, 3 How. 292, 11 L. Ed. 603, and Ray v. Norseworthy, 23 Wall. 128, 23 L. Ed. 116, already referred to; but it claims that the former was under the