80 Va. 503 | Va. | 1885
delivered the opinion of the court.
This is a controversy as to who is entitled to a certain fund remaining in the hands of the receiver in the suit of Cole, adm’r of Gilchrist, against one Young and Howard Craft’s adm’r, brought many years ago in the circuit court of Pittsyl-vania county, and there prosecuted until removed to the corporation court of Danville. The object of that suit was to avoid, for fraud, a contract and conveyance by Gilchrist to Young, of certain very valuable real estate in Pittsylvania county, Virginia, and in the state of Kentucky, which conveyance was fraudulently procured hy a corrupt combination between said Young and Craft, the product of which fraudulent conspiracy was divided between them. The suit was successfully prosecuted, the swindle exposed, and the contract annulled hy a decree entered in the cause, which decree was appealed from and was affirmed by this court in 1873. The cause was then sent back to the lower court for further proceedings to be had therein. Much of the land acquired from Gilchrist by Young and Howard Craft, by and through their fraudulent combination aforesaid, had passed into the hands of innocent parties, and could not be made available to reimburse the estate of Gil
Howard Craft died seized in fee of a large estate, real and personal, which he devised jointly and equally to his wife, Lucy H. Craft, and to his son and only child, Johnson Craft. Subsequently, in a suit for the purpose, partition of said estate was had in obedience to a decree rendered in said last named suit in 1858. After said partition had been made and confirmed, Lucy L>. Craft went into bankruptcy and surrendered the land partitioned to her, except a small portion which she had aliened. Hpon proceedings taken therein for the purpose, the lands surrendered by Lucy I). Craft were, by order of the bankrupt court, stricken from her schedule of property surrendered, and submitted to the jurisdiction and disposition of the state court, in said suit of Cole, adm’r of Gilchrist, vs. Young and Howard Craft’s representative, &c. After said suit went back to the circuit court of Pittsylvania, with the view of reaching and charging the estates of Young and Howard Craft with the liability incurred by them by reason of the fraud which they had perpetrated upon Gilchrist, the bill was amended, the necessary facts set forth, and all necessaiy parties made; and the appellant Cobbs, assignee of Lucy D. Craft, was made a party to said amended bill. This was in 1875. In the meantime, the cause was removed to the corporation court of Danville, wherein all subsequent proceedings were had. For the purposes of this controversy, no further mention need be made of Young or his estate, as the fund in question is part of the proceeds of the Craft lands sold in said suit.
In the suit of Gilchrist’s adm’r vs. Young and Howard Craft’s estates, süch proceedings were had that by a decree rendered in February, 1876, a very large liability was fixed upon the estates of Young and Howard Craft. That decree ascertained and apportioned the liability of the' devisees of Howard Craft; held that all the lands devised by said Howard Craft to Lucy D. and Johnson Craft, were liable to Gilchrist’s
The decree of 1876, thus apportioning and fixing the order of liability of the Craft lands, was appealed from, and the appeal regularly docketed in this court, which appeal was dismissed on the 6th day of November, 1878.
All the lands thus decreed to be sold were sold, and the purchase money came into the hands of the court’s receivers.
In 1877, unexpectedly, a very considerable personal fund, belonging to Howard Craft’s estate, was realized, and hence the balance, arising from the sale of the Craft lands, now in dispute.
When it was ascertained that this surplus existed, JohnrO. Shelton, the purchaser from Johnson Craft of a tract of land (a part of that devised by Howard Craft), which had been subjected and sold under said decree of 1876, filed his petition in said suit claiming, that as said fund was needed to satisfy the liability of Howard Craft’s estate, he (Shelton) was entitled thereto.
This petition was answered by Johnson Craft, denying Shelton’s claim, and insisting that he (Craft), and his creditor, one Hargrove, were entitled to same. The question was determined at the June term, 1882, when the court rejected the claim of Shelton (and also that of others, who it seems also asserted
Here, it is true, only decrees subsequent to that of 1876, are appealed from; but to reverse the decrees complained of would ■ he, in effect, to review and reverse said decree of 1876, which fixed the order of liability of the lands of Lucy L>. and Johnson Craft, and thereby precluded the appellant’s claim as as-signee of Lucy I). Craft. By force of the statute, (§ 18, ch.
Again, the appellant, as assignee of Lucy I). Craft, at the inception of this proceeding by him, stood precluded and -was barred of his claim by the federal statute prescribing the time wnthin which, 'after the right of action has accrued, proceedings by or against assignees in bankruptcy shall be commenced. The policy of the bankrupt law is speedy as well as equal distribution of the bankrupt’s assets among his creditors. Hence the clause (§ 5057, R. S. U. S.), limiting the commencement of actions by and against the assignee to two years after the right of action accrues, applies to all judicial contests between the as-signee and any person whose interest is adverse to his. Such ■was the ruling of the Supreme Court of the Nnited States in Bailey v. Glover, 21 Wall. 346; see also Gifford v. Helms, 98 U. S. 248; Jenkins v. International Bank, 106 U. S. 571.
■ Here the surplus in controversy uras ascertained, by decree in August, 1877; a protracted controversy in respect to it then ensued, and -was not determined until June, 1882, during all which period this assignee, the appellant here, though a party to the suit in 'which this controversy, between others, was being waged, stood by and asserted no claim. This was gross negligence, if he had any claim (and in fact he had none), and, to say the least, strongly indicated that he had no claim, or had abandoned it. That it was his duty to commence proceedings to recover this fund, if he had any just claim thereto, within two years after the decree of 1877, there can be no doubt; and that the right of action, if any, then accrued, is equally clear. He, however, w-aited for over five years, and until the contest between others, claiming the fund adversely to him was ended, and then presented his petition, asking that the court reverse and annul its decree settling the question, and decree the fund to him. His
DECREES AFFIRMED.