Section 713, which deals with "Jurisdiction, powers, and duties," and "administration of estate", provides:
"Upon the filing of a petition, the court may, in addition to the jurisdiction, powers, and duties hereinabove and elsewhere in this chapter conferred and imposed upon it --
"(1) permit the rejection of executory contracts of the debtor, upon notice to the parties to such contracts and to such other parties in interest as the court may designate;
"(2) upon such notice as the court may prescribe and upon cause shown, authorize the receiver or trustee, or the debtor in possession, to lease or sell any property of the debtor, whether real or personal, upon such terms and conditions as the court may approve;
"(3) whenever under this chapter the court is required or permitted to fix a time for any purpose, the court may upon cause shown extend such time. July 1, 1898, c. 541, § 313, as added June 22, 1938, c. 575, § 1, 52 Stat. 906."
Since the second phase of Fow's claim is for services rendered while the debtor was in possession, the provisions of Section 742 become pertinent. Section 742 reads as follows: "Where no receiver or trustee is appointed, the debtor shall continue in possession of his property and shall have all the title and exercise all the powers of a trustee appointed under this title, subject, however, at all times to the control of the court and to such limitations, restrictions, terms, and conditions as the court may from time to time prescribe. July 1, 1898, c. 541, § 342, as added June 22, 1938, c. 575, § 1, 52 Stat. 909." (Emphasis supplied.)
Since, also, the referee has enjoined Fow from proceeding with his suit against the County Commissioners, it is pertinent to quote the provisions of Section 714, which reads as follows: "The court may, in addition to the relief provided by section 29 of this title and elsewhere under this chapter, enjoin or stay until final decree the commencement or continuation of suits other than suits to enforce liens upon the property of a debtor, and may, upon notice and for cause shown, enjoin or stay until final decree any act or the commencement or continuation of any proceeding to enforce any lien upon the property of a debtor. July 1, 1898, c. 541, § 314, as added June 22, 1938, c. 575, § 1, 52 Stat. 907."
The sections of Chapter 11 and the various other relevant sections of the amended Bankruptcy Act above cited demonstrated conclusively, then, that with the filing of the petition for the Arrangement the bankruptcy court is vested with exclusive jurisdiction of the debtor and his property. It is worthy of note, also, that the Chandler Act changed the prior Bankruptcy Act so that when a trustee is appointed his title to the property of the bankrupt now dates back to the filing of the petition instead of to the date of adjudication and vests in the trustee when he qualifies by the filing and approval of his bond. See discussion by former Judge George E. Q. Johnson in his Commentary on the Chandler Act, p. xx, Title 11 U.S.C.A., Sections 201 to End.
Numerous authorities may be cited for the proposition that with the filing of a bankruptcy petition generally, the estate of the bankrupt is regarded as in custodia legis from the date of the filing of the petition: see McKesson & Robbins, Inc., v. Morris-Travis Drug Co., 6 Cir., 106 F.2d 681; that prior to the appointment of a trustee in bankruptcy, the property of the bankrupt is in custodia legis in the bankruptcy court, and is in full possession and control of the courts: Stanolind Oil & Gas Co. v. Logan, 5 Cir., 92 F.2d 28 (certiorari denied 302 U.S. 763, 58 S. Ct. 409, 82 L. Ed. 592).
In Taylor v. Sternberg, Trustee in Bankruptcy, 293 U.S. 470, page 472, 55 S. Ct. 260, page 261, 79 L. Ed. 599, it was held: "Upon adjudication in bankruptcy, all the property of the bankrupt vests in the trustee as of the date of the filing of the petition. Upon such filing, the jurisdiction of the bankruptcy court becomes paramount and exclusive; and thereafter that court's possession and control of the estate cannot be affected by proceedings in other courts, whether state or federal. Gross v. Irving Trust Co., 289 U.S. 342, 344, 53 S. Ct. 605, 77 L. Ed. 1243, 90 A.L.R. 1215; Acme Harvester Co. v. Beekman Lumber Co., 222 U.S. 300, 307, 32 S. Ct. 96, 56 L. Ed. 208; In re Diamond's Estate [6 Cir.], 259 F. 70, 73. This applies while the possession is constructive as well as when it becomes actual. Mueller v. Nugent, 184 U.S. 1, 14, 22 S. Ct. 269, 46 L. Ed. 405; Taubel-Scott-Kitzmiller Co. v. Fox, 264 U.S. 426, 432, 433, 44 S. Ct. 396, 68 L. Ed. 770; Orinoco Iron Co. v. Metzel [6 Cir.], 230 F. 40, 44, 45, and cases cited."
Fow's attempt to circumvent operation of the provisions of the amended Bankruptcy Act by assertion of Section 26 of the contract between the County Commissioners and the debtor, which gives the County Commissioners the right to "withhold from the contractor such an amount or amounts as may be necessary to adjust claims for labor and services rendered and materials furnished in and about the work" and "to apply such retained amounts to the payment of such just claims", is a novel expedient which falls of its own weight.
Although the question of the size of Fow's fee is for the primary consideration of the referee, I cannot refrain from the observation that it is wholly disproportionate under the circumstances such as exist here, where the total return under the contract to the bankrupt estate was $2,905.30.
Fow is seeking $1,500 for services rendered over a four-day period and the services appear to consist of negotiations with the County Commissioners for the continuance of the contract and in connection with the petition to this court for permission to continue the contract.
The record also discloses that Fow has additionally presented a claim for $330 before the referee for his services as counsel for the debtor.
For the reasons stated, the petition for certificate of review is denied, and the opinion and order of the referee is confirmed and affirmed.