In re Benson, Inc.

The lease is forfeitable when, in any judicial proceeding, “a receiver or other officer or agent be appointed to take charge of the demised premises or the business conducted therein.” No receiver has in fact been appointed. On the contrary, the business is being operated by the debtor itself, subject, it is true, to control of the Court. On the filing of a petition under Chapter XI, 11 U.S.C.A. § 701 et seq., the Court has no authority forthwith to appoint a receiver. That can be done only on petition of a creditor. In the absence of such petition, the debtor must be continued in possession. Bankruptcy Act §§ 332, 342, 11 U.S.C.A. §§ 732 , 742. The distinction is emphasized in the language of the Act: “Where nc 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 Act [title],” subject, of course, to the control of the Court. Bankruptcy Act, § 342, 11 U.S.C.A. § 742 . It is true that he exercises such powers as a trustee would exercise, but if the lease is forfeitable under such circumstances then it should have said so in unmistakable terms. To give the…