Carr

(concurring).

I concur in holding that the referee was without power to order appellee to deliver the 296 bonds to appellant.

The bonds in question were not securities within the meaning of § 57, sub. e, of the Bankruptcy Act. Furthermore, the appel-lee did not have possession of the security held under the mortgage, such security being held by a'bank named as trustee in the trust indenture. An order requiring appellee to turn over such security would be and was erroneous and impossible of compliance.

I do not agree with the discussion by the majority of the question as to whether or not appellee waived one half of its security or of the question concerning an alleged appraisal by the referee; discussion of both questions being unnecessary here, for in no event can the referee’s order be sustained for the reasons above stated.

The Southern Pacific Company, appellee, is the holder of 592 bonds of the par value of $1,000 each, issued by the bankrupt. On May 15, 1940 the appellant filed a petition for an order directing the Southern Pacific Company to turn over to the trustee 296 of such bonds, with interest coupons attached, upon the ground that these bonds had become the property of the estate of the bankrupt by reason of certain transactions occurring before the referee on the 29th of April, 1940, at a hearing of the first meeting of the creditors to select a trustee in bankruptcy. The petition alleges that the appellee, to gain the privilege of voting half its claim in the election of a trustee, waived “one-half of its said securities and accruals thereunder, towit, one-half of $609,094,” and that the referee consequently allowed the appellee to vote its claim of $609,094 in the amount of $304,-106.14. The appellee filed an answer denying that the appellant owned the bonds in *766 question and alleging that it did waive “its right to realize more than $304,547 in value from its security for said claim”, and that it did vote the amount of $304,106.14 (half its claim, less a set-off of $439.86 existing…