Schuenke

This is an appeal from an order of the District Court affirming an order of a Referee in Bankruptcy refusing to set aside a sale to D. J. Miller of property of the bankrupt estate of The Ridgecrest Development Company, a corporation, of which he was President. Appellants contend Miller acted in a trust capacity for the officers of the bankruptcy court, and therefore the sale to him was void.

The Ridgecrest Development Company, a corporation, was adjudged a bankrupt in May, 1947, and the proceedings were referred to Referee Bergman and later to Referee McGugin. 1 Paul W. Sampsell, an experienced and able officer, was appointed Trustee 2 the following month. D. J. Miller, L. E. Sever-sen and L. M. Vreeland were President, Vice-President and Secretary, respectively. The corporation owned, at the time of bankruptcy adjudication, a tract of land at the desert town of Ridgecrest, California, near a United States military base, and some rental town structures including a theatre which had been erected upon the property.

On January 13, 1950, the Ridgecrest property was sold to Miller, lately resigned as President 3 of the bankrupt, for $131,000.00. The sale was confirmed January 23.…

I dissent.

Heretofore I prepared an opinion in this case in which I held that there were irregularities in the administration of the estate which, in my opinion derived from a commendable though perhaps unwise effort to reduce expenses and save creditors from losses. My associates were not in agreement with my view, and the opinion by Judge Fee, approved by Judge McCormick, followed.

The action of the referee as to Miller’s acting as sales agent was unquestionably wrong and never met with the approval of the trustee. However, I cannot find more than a vague suspicion of any crookedness in the administration emanating entirely from the mere possibility that Miller acted unfaithfully. The. attack upon the proceedings was long delayed and should not be successful, with the consequent disturbance of land titles based upon court orders, unless positive fraud was both alleged, and proved. These requisites seem to me to .be lacking. I would affirm..