409 U.S. 957
Coy L. WEAVER et ux.
Richard M. HUTSON, II, Trustee of Landmark Inns of Durham, Inc.
Supreme Court of the United States
October 24, 1972
On petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit. The petition for a writ of certiorari is denied.
Mr. Justice WHITE, dissenting.
Section 70(b) of the Bankruptcy Act, 11 U.S.C. 110(b), provides: '[A]n express covenant that an assignment by operation of law or the bankruptcy of a specified party thereto or of either party shall terminate the lease or give the other party an election to terminate the same is enforceable.' In Finn v. Meighan, 325 U.S. 300 (1945), the Court held 70(b) fully applicable in ch. X reorganization proceedings despite arguments that enforcement of forfeiture clauses could deprive the debtor of property vital to the continuance of the business and so defeat the very purpose of the reorganization proceedings.* The Court said: 'There is some suggestion, however, that that provision is applicable only in ordinary bankruptcy proceedings and not to reorganizations under Ch. X. It is pointed out that frequently the value of enterprises is greatly enhanced by leases on strategic [409 U.S. 957 , 958] premises and that if forfeiture clauses were allowed to be enforced, reorganization plans might be seriously impaired. But Congress has made the forfeiture provision of 70 applicable to reorganization proceedings under Ch. X. . . . Thus we must read 70(b) as providing that an express covenant is enforceable which allows the lessor to terminate the lease if a petition to reorganize the lessee under Ch. X is approved. Cf. In re Walker [2 Cir.], 93 F.2d 281. That being the policy adopted by Congress, our duty is to enforce it.' 325 U.S., at 302 -303.
In the case before use the Court of Appeals for the Fourth Circuit refused to apply 70(b) in a reorganization proceeding and to enforce a termination provision in a lease because to do so, in its opinion, would emasculate the reorganization plan. The Court of Appeals relief on Smith v. Hoboken R. Co., 328 U.S. 123 (1946), where this Court held that 70(b) did not require recognition of a forfeiture provision in the context of a railroad reorganization under 77 because the forfeiture would deprive the Interstate Commerce Commission of its statutory function . The Court was careful to distinguish Finn:
[ Footnote * ] The petitioner argued, Brief of Petitioner, pp. 4-5, 11: