grantee, who was a creditor of the grantor, the legal title, and conferred on him the power to sell the property thus conveyed, and transmit the legal title to his grantee. The trust deeds of the alleged bankrupt's property in this case are clearly not in the nature of an absolute conveyance. They are conveyances to secure debts of the grantor not then due. "Like the mortgage at common law, the trust deed passes the legal title to the grantee in those jurisdictions where a mortgage passes such interest, and leaves in the grantor the equity of redemption only. Likewise in those states where it is held that the legal title remains in the mortgagor the same rule is generally applied in favor of the grantor in a trust deed." 28 Am. & Eng. Enc. of Law (2d Ed.) 753. The grantor of these trust deeds undoubtedly retained an interest in the property conveyed, which in bankruptcy would pass to its trustee for the benefit of its unsecured creditors. In re Union Trust Company, 122 Fed. 937, 59 C. C. A. 461. The filing of a petition in bankruptcy is in substance and effect an attachment and an injunction, and it places the property of the bankrupt constructively in the custody of the court of bankruptcy. Loveland on Bankruptcy, § 150; In re Weinger, Bergman & Co. (D. C.) 126 Fed. 875. Property on which there is a mortgage or other lien passes to the trustee in bankruptcy, and is therefore in the custody of the court of bankruptcy. In re Rochford, 124 Fed. 182, 59 C. Č. A. 388; In re Kellogg, 121 Fed. 333, 57 C. C. A. 547; Chauncey v. Dyke Bros., 119 Fed. 1, 55 C. C. A. 579; In re Booth (D. C.) 96 Fed. 943. And the beneficial interest of a bankrupt in property held in trust passes, also, in all cases where that interest might have been transferred to another by the bankrupt, or might have been levied upon under judicial proceedings against him. Stanford v. Lackland, 2 Dill. 6, Fed. Cas. No. 12,312; Spindle v. Shreve, 111 U. S. 542, 4 Sup. Ct. 522, 28 L. Ed. 512. The trustee in bankruptcy has the election to refuse to take possession of mortgaged property, if its value, over and above the incumbrance, is not sufficient to justify an attempt to administer it. It is true that the bankruptcy act provides that liens such as the lienholders had under the trust deeds in this case shall not be affected by bankruptcy, but that is far from saying that such lienholders may, after the commencement of proceedings in bankruptcy against the debtor, proceed to enforce their liens or contracts in the manner prescribed in the instruments which create them; and this is true whether such lien is an ordinary mortgage, or a deed of trust with provision for a strict foreclosure by a notice and sale. The provision of the bankruptcy act that such a lien shall not be affected by the bankruptcy proceedings has reference only to the validity of the lienholder's contract. It does not have reference to his remedy to enforce his right. The remedy may be altered without impairing the obligation of his contract, so long as an equally efficient and adequate remedy is substituted. Every one who takes a mortgage, or deed of trust intended as a mortgage, takes it subject to the contingency that proceedings in bankruptcy against his mortgagor may deprive him of the specific remedy which is provided for in his contract.

The petitioners cite and rely upon the decision in Re Snell et al. (D. C.) 125 Fed. 154. That was a case in which the District Court dissolved an order which it had theretofore made staying proceedings in an action pending in a state court. There was no dispute that the creditor of the bankrupts in that case had obtained a valid attachment upon the property of the bankrupts more than four months prior to the commencement of the bankruptcy proceedings. The court held that he should be permitted to prosecute his action to judgment, and satisfy the same by an execution sale of the attached property. This was held on the authority of Metcalf v. Barker, 187 U. S. 165, 23 Sup. Ct. 67, 47 L. Ed. 122, and In re Beaver Coal Co., 113 Fed. 889, 51 C. C. A. 519. In Metcalf v. Barker it was held that a lien obtained upon the property of a bankrupt by proceedings in the state court more than four months prior to bankruptcy was superior to the title of the trustee, and that the District Court of the United States has no jurisdiction to enjoin the enforcement of such a lien. Said the court:

"The state courts had jurisdiction over the parties and the subject-matter, and possession of the property. And it is well settled that, where property is in the actual possession of the court, this draws to it the right to decide upon conflicting claims to its ultimate possession and control."

In the present case there was no jurisdiction over the property of the bankrupt in any other court. The only jurisdiction was in the court of bankruptcy. The interest of the bankrupt in the mortgaged property will pass to the trustee when he is appointed, and in the meantime it is under the protection of the bankruptcy court. The petitioners also cite In re Browne (D. C.) 104 Fed. 762. In that case McPherson, District Judge, while declining to pass on the question whether the court had jurisdiction to interfere and prevent a fraudulent or oppressive exercise of the right of sale of personal property which had been pledged by the bankrupt more than four months prior to bankruptcy, in a case where it had been agreed that the creditors intended to deal fairly with the property pledged, and to make an honest offer to sell for the best prices that could be obtained, was of the opinion that the bankruptcy act gave the court no authority to interfere between the creditors and the exercise of their right to sell given them by the collateral notes. It may be remarked in this connection that the interest of a pledgee differs from that of a mortgagee. The pledgee has a special property in the thing pledged, which entitles him to the possession, to protect which he may mantain detinue, replevin, or trover, and the interest of the pledgor is not subject to execution. The decision in Re Browne may be accepted as authority for the proposition that a District Court will not interfere with a sale by a pledgee of the thing pledged, under the power of sale given by the terms of his contract, when there is no claim that such power is exercised in a fraudulent or oppressive manner.

The bankruptcy act provides (Act July 1, 1898, c. 541, § 2, cl. 15, 30 Stat. 545 [U. S. Comp. St. 1901, p. 3421]) that courts of bankruptcy shall have power to make such orders, issue such process, and enter such judgments, in addition to those specifically pro

vided for, as may be necessary for the enforcement of the provisions of the act. Under this provision the court may, upon proper application and cause shown, restrain not only the debtor, but any other party, from making any transfer or disposition of any part of the debtor's property, or from any interference therewith. Beach v. Macon Grocery Co., 116 Fed. 143, 53 C. C. A. 463. In that case creditors who had filed an involuntary petition in bankruptcy against their debtor filed therewith an ancillary bill in equity, alleging that a third person claimed possession and ownership of property which was in fact a part of the bankrupt's estate. Circuit Court of Appeals for the Fifth Circuit held that the court had the power to issue an injunction restraining such person from selling or incumbering the property pending the hearing on the petition, and, in case an adjudication of bankruptcy were made, until the trustee could proceed adversely against the claimant to determine the title to the property.

We are of the opinion that the District Court had jurisdiction to make the restraining order. Of the propriety of that order, assuming that the court had the power to make it, there can be no question. All the property of the alleged bankrupt was about to be sold, at the instance of its treasurer, to obtain satisfaction of debts owing to him and his wife, secured by the trust deeds. These facts evidently came to the knowledge of unsecured creditors but a few days before the proposed sale. They had no time in which to bring the creditors together, or to secure bidders for the property, or otherwise to protect their interests. The sale of the property under the trust deeds would have extinguished the equity of redemption. By selling the property under the direction of the bankruptcy court, the interests of all parties may be protected, and the trustees of the trust deeds will not be injured. They will be entitled to the proceeds of the sale to the same extent that they would have been if they had themselves made the sale under the power of sale given them by the trust deeds.

The order of the District Court is affirmed.

ETNA LIFE INS. CO. v. DUNN.

(Circuit Court of Appeals, Eighth Circuit. May 11, 1905.)

No. 2,078.

1. ACCIDENT POLICY-INJURY SUSTAINED IN A GIVEN OCCUPATION.

Where a party obtains a policy of insurance against injury by accident, specifying the occupation of the assured to be that of a druggist, deemed to be a select risk, and that of a farmer or supervising farmer only is specified as a more hazardous risk, calling for a larger premium, and thereafter the drug store of the assured was destroyed by fire, whereupon the assured moved upon a tract of land entered as a homestead, into a house built by him thereon, which he thereafter occupied with his family as his home, and superintended the construction of a barn thereon, and caused to be fenced and broken and cultivated 40 acres of the land thereof, under his supervision, for a period of six months; and

was preparing for further cultivation of the land at the time of his injury, and for eight months prior to such injury had no connection with the business of a druggist, his occupation was that of a supervising farmer, and not that of a druggist, within the meaning of the policy.

[Ed. Note.-Accident insurance, risks, and causes of loss, see note to National Acc. Soc. v. Dolph, 38 C. C. A. 3.]

2. SAME-OCCUPATION.

The term "occupation," as employed in the policy, implies simply that which at the time of the accident constitutes the assured's principal business or pursuit; that which engages his attention and time, as destinguished from that which is incidentally connected with the life of men in any or all occupations.

3. SAME CONTINUANCE.

The fact that the assured for some time after the destruction of his drug store was engaged in proving and collecting a claim for loss under a policy of insurance on the drugs, and from time to time attended to the collection of accounts connected therewith, and entertained the purpose to resume the business of a druggist after he had made sufficient improvement on and had occupied his homestead for a sufficient length of time to enable him to sell his homestead right, did not have the effect to continue during such time his occupation as a druggist, or affect the designation of his occupation as that of a supervising farmer only. 4. SAME-ABANDONMENT.

The correct test in such cases is not so much as to whether the assured had in fact abandoned the occupation stated in the application and policy, but whether or not at the time of his injury he was in fact engaged in another occupation, not merely incidental, but as a business, of a more hazardous classification.

(Syllabus by the Court.)

In Error to the Circuit Court of the United States for the District of Nebraska.

Arthur W. Lane (Halleck F. Rose, on the brief), for plaintiff in

error.

A. S. Tibbets (W. L. Anderson, on the brief), for defendant in

error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS, District Judge.

PHILIPS, District Judge. This is an action on an insurance. policy known as a "Twentieth Century Combination Accident Policy," issued by the Ætna Life Insurance Company of Hartford, Conn., on the 9th day of December, 1901, in favor of William Henry Harrison Dunn. In the month of May, 1901, said Dunn was engaged in business as a druggist at the town of Mangum, in the territory of Oklahoma, when he made application to the insurance company for said policy. In his application he stated that he was a druggist, not chemist by occupation, and that as such he desired to be placed in the classification designated as "select," which occupation was deemed less hazardous, and required the payment of a less premium, than one engaged in the occupation of a farmer or a supervising farmer only. The policy was accordingly issued for a period of three months, covering the specified accidents. In case of death occurring within the terms covered by the policy, the

amount of recovery was to be $5,000. The policy contained the following provision:

"The policy is issued and accepted subject to the following conditions: If the insured is injured in any occupation or exposure classed by this Company higher than the premium paid for this policy covers, the principal sum insured and weekly indemnity shall be only such amounts as said premium will purchase at the rate fixed for such increased hazard."

Within a short time thereafter, in the same month, the drug store of the assured was destroyed by fire. On the 26th day of September, 1902, the assured received an injury by being thrown from his buggy, which resulted in his death the next day thereafter. His widow, the defendant in error, as the beneficiary, brought suit on the policy to recover the full amount of $5,000.

The defense interposed to this action is that at the time of the accident the occupation of the assured was not that of a druggist, and had not been for six months or more previous thereto, but that in the preceding spring he had taken up the occupation of a farmer or supervising farmer only, in which business he was engaged at the time of the injury, which occupation at the time of the application and issue of the policy was classified as "hazardous," and not as "select," and called for a higher rate of premium than that of a druggist; and therefore said change in occupation, according to the contract, increased the hazard, and entitled the claimant, under the proper classification, to recover not exceeding the sum of $1,562.50. It is conceded, however, by plaintiff in error that under the proofs the defendant in error is entitled to recover the sum of $2,500. On a trial to a jury the plaintiff below recovered judgment for the full sum of $5,000, with interest.

The question to be decided is whether or not, on the whole evidence, the trial court should have instructed the jury that the plaintiff below was not entitled to receive the sum of $5,000 under the policy. The answer to this involves the question of fact, as affected by rules of law, whether or not at the time of the accident the occupation of the assured was that of a druggist, or of a farmer or supervising farmer only. The court below treated this question as one for the determination of the jury. If, however, all the essential facts give but one reasonable, sensible character to the assured's occupation at the time of his injury, the plain office of the court was to declare what that occupation was, and direct judgment accordingly.

The evidence shows that some years prior to 1900 the assured resided in the state of Nebraska, engaged in the superintendency of a large farm, of about 2,000 acres, owned by his brother. Thereafter he conducted a drug store in northeast Missouri. In May, 1901, he opened a drug store at Mangum, in the territory of Oklahoma, which he conducted until it was burned the 8th day of December, 1901. Between that time and his death, about September 27, 1902, he neither owned nor conducted a drug store or dealt in drugs. He was occupied more or less constantly between one and two months after the loss of his drug store in settling up the business connected therewith, and from time to time thereafter gave attention to the