
    John Plath GREEN, Trustee of the Estate of Texas Pool Corporation, Bankrupt, v. H. E. BUTT FOUNDATION et al.
    No. 15031.
    United States Court of Appeals Fifth Circuit.
    Dec. 9, 1954.
    Wm. J. Rochelle, Jr., Dallas Tex., Palmer & Rochelle, Dallas Tex., for appellant.
    Philip Silverberg, John A. Pace, Dallas, Tex., Philip Schraub, James McCol-lum Burnett, J. Marvin Ericson, Robert E. Haegelin, Hale & Schraub, Lewright, Dyer, Sorrell & Redford, Corpus Christi, Tex., Scurry, Scurry & Pace, Davidson & Silverberg, Dallas Tex., for appellees.
    Before HOLMES and TUTTLE, Circuit Judges, and ALLRED, District Judge.
   HOLMES, Circuit Judge.

This appeal is from an order of the district court, made by the district judge, which reversed and held for naught an order of the referee in bankruptcy with reference to a debt in the sum of $30,-786.35, which the appellant claims was the balance due the bankrupt by the H. E. Butt Foundation, at the time of bankruptcy. Said sum is claimed to be due the contractor for the construction of a swimming pool near Corpus Christi, Texas. The contract price was $95,000. The pool was completed, and accepted by the Foundation prior to bankruptcy, but that did not complete the obligation of dhe bankrupt under his contract, which .‘contained the following stipulation:

■ “Neither the final payment nor ány part of the retained-percentage - shall become due until the contrac- • tor, if required, shall deliver to the owner a complete release of all liens arising out of this contract, or receipts in full in lieu thereof, and if ■ required in either case an affidavit that so far as he ha» knowl- ■ . edge or information the releases and receipts -include all the labor and ■ material for which a lien could be filed, but the contractor may, if any . sub-contractor refuses to furnish a release or receipt in full, ■ furnish a bond satisfactory to the owner to indemnify him against any lien. - If any lien remains unsatisfied, after all payments are made, the contractor shall refund to” the owner all moneys that the latter may , be compelled to pay in discharging such a lien, including all costs and a reasonable attorney’s fee.”

It is manifest from this record that the Butt Foundation is an adverse holder of the chose in action which is the subject of this controversy; and is in good faith withholding payment of the balance due under the contract in order-to satisfy the claims-of laborers, mechanics, and materialmen, who per-: fected their liens long prior to the, .filing of the petition in bankruptcy by the contractor. Constructive-.possession of an intangible asset is a legal "fiction that is predicated solely upbnr tile owner’s fight of possession.,

U rider the lien laws of Texas* -the H. E-.- Butt Foundation was-vrelieved of its indebtedness to the. contractor. ás soon as thecabove-mentioried -liens were filed-and pérftected:-. SuehdiensEseizte.and appropriate 'fordthe'benefit o£-j;he:'lienorá any .money in "the hands. of"tthei owner jjha't'is:due- or may become,:.due and payable to^the .contractor. This appropriated fund is riot a debteduej the -'bankrupt, and does not fall into the hands of the trustee'under the fiction of constructive possession. There is no conflict between Perry v. Wood and In re Weston as to the rule that liens of mechanics and matériálméri created prior to the filing of a petition in bankruptcy appropriate a retained .fund in the hands of an owner to the extent, necessary to satisfy the indebtedness due such lienors. Gay v. Acme Brick Co., Tex.Civ.App., 15 S.W.2d. 725; Stanfill v. Penniman Gravel & Material Co., Tex.Com.App., 27 S.W.2d 135; Wilson v. Sherwin-Williams Co., 110 Tex. 156, 217 S.W. 372; Investors Syndicate v. Dallas Plumbing Co., Tex. Civ.App., 61 S.W.2d 1039; Perry v. Wood, 5 Cir., 63 F.2d 257; Revised Civil Statutes of Texas, 1925, Article 5452 et seq., Vernon’s Ann.Civ.St.Tex. art. 5452 et seq.

. The trustee contends that constructive possession of the fund vested in him as of the date of the filing of the petition in .bankrupcty, and cites as his authority for such position the case of In re: Weston, 2 Cir., 68 F.2d 913. The appellées, we -think, rightly contend that the just cited case may easily be distinguished from ;the case- at bar on the ground that there the lien was perfected after the petition in bankruptcy was filed,' while here the appellees perfected their .liens about two rnonths prior to thefilirig of the petition in bankruptcy. In the case at bar the very existence of this debt to the bankrupt'is disputed-. The trustee in barikruptcy has the right to bring á plénary action in á- court of competent'jurisdiction against'the Butt Foundation to recover any disputed ariiount that is owing by the latter 'but is- riot entitled to !a summary order there-f&E: - " , ' -

It not. only clearly appears.-that the,Foundation is-holding this money in good faith :,-for the ,;bpnefit of;lienors sy-ho have -perfected .-their .-liens.-under Texas - statutes, -but it fails tq appear on. this record that there isfiariy equity in/the fund for-¡the .beritefit of the general creditors of the bankrupt. It. is not necessary for us to decide the lattér question in a summary proceeding, and we leave it open for a plenary suit if the trustee in bankruptcy sees fit to institute such a proceeding and is authorized to do it by the bankruptcy court. If there is an undisputed excess in the Foundation’s hands over the aggregate sum secured by valid liens, the trustee is entitled to a summary turnover order for the amount of said excess; but if there is a bona fide dispute as to the existence of any such excess, the trustee must file a plenary action to recover possession of the same. The order appealed from should be, and hereby is, modified accordingly. Perry v. Wood, 5 Cir., 63 F.2d 257, and authorities therein cited.

As so modified, the order appealed from should be affirmed.

Affirmed.  