60 So. 283 | Ala. | 1912
Lead Opinion
On November 16, 1867, James P. Lacey filed his petition to be adjudged a bankrupt, exhibiting therein schedules of his assets and liabilities. He was on December 7, 1867, adjudged a bankrupt. An assignee, N. B. Mardis, was duly appointed and qualified. Upon Lacey’s petition and after his final examination, he was discharged on December 7, 1871. On August 26, 1869, the assignee, as such, executed to French Nabors a deed to certain lands belonging to the bankrupt estate. This conveyance purports to have followed from a sale by the assignee in the course of the bankruptcy proceeding, and recites that Nabors was the highest and best bidder thereat. In this conveyance there are a number of recitals, among which are (a) that the property of the bankrupt was theretofore assigned by the register to the assignee; (b) and that an order of sale of the property had been made by the register. In addition the conveyance contains these words:' “Now, therefore, under and by virtue of the said order of sale and the power given to the said party of the first part (i. e., assignee), by law as'well as in consideration” of a sum stated, the receipt whereof is acknowledged. The docket entries and papers in the
There was no proof of actual possession by any one since the institution of the bankruptcy proceedings in 1867. So the reliance to sustain the allegation in the original and cross bills, respectively, of possession of the property, must be the ascertainment of the repository of the legal title, which, under the familiar rule applicable where there is no actual possession opposed thereto, draws to itself constructive possession. It does not appear from the evidence that appellants or James P. Lacey ever asserted any. claim to the lands in question until about the time this litigation was commenced. It does appear that Mardis, the assignee, and James P. Lacey had been dead more than 15 years before June 28, 1910. Lacey, the owner of these lands, invoked the jurisdiction of the bankruptcy court in 1867. In orderly progress Mardis was duly constituted the assignee in that proceeding. An essential step in the administration of the trust for the benefit of the creditors of the debtor was an assignment by the judge or register of the property of the bankrupt to the assignee.—Conner v. Long, 104 U. S. 228, 230, 26 L. Ed. 723. In 1869 a sale
Under the circumstances stated, there should be no hesitancy in finding as of fact, and of presuming from the circumstances shoAvn that in the progress of the bankruptcy proceedings, eventuating in the bankrupt’s discharge, all necessary steps were taken to administer the trust, and to effectuate the purpose of the laAvs under Avhich Lacey voluntarily sought and secured his discharge from his scheduled liabilities. That the finding made and the presumption indulged conform to the truth is rendered practically certain by the fact that Lacey himself never subsequently asserted, or sought to assert, any right to these lands. To impute to Lacey any other relation to these lands than that the stated finding and presumption take as true Avould unwarrantably refute, in the interest of his heirs, Avho could occupy, in this particular respect, no higher right or relation to these lands than Lacey, his verified declaration upon AAdiich he sought and secured his discharge in bankruptcy. These proceedings, as shown by the papers therein, have passed, because of the elapsing of so many
It is insisted for appellants that the presumption of a grant of real estate, after the elapsing of a great period of time, has not been indulged except to support and confirm an actual possession. If that be accepted as the unvarying rule, our conclusion, as before expressed, does not conflict therewith. The finding upon fact and the presumption therefrom in respect of steps in a proceeding taking place in the remote past in a tribunal fully jurisdictioned to act and which did pronounce according to the ultimate object of the proceeding distinguished the matter at bar from a status to which appellants’ contention refers.
The decree is therefore affirmed'.
Affirmed.
Dissenting Opinion
(dissenting.) — I am of the opinion that the decree is for the wrong party. Appellants and
It is admitted that the records of the bankrupt court show no assignment of the land in question to the assignee by the bankruptcy court. Without such assignment it is admitted that no title could pass. The recital of such assignment in the assignee’s deed is not sufficient. An agent or trustee cannot bind his principal or cestui que trust by recitals in conveyances of the trust property that he is authorized to convey. If this be true, a trustee or assignee can always confer authority on himself to make any property trust property, and then authorize himself to sell and convey it. The trustee or assignee is the creature of the trust, and not the creator of it or of his own authority to convey it. The purchaser has never been in possession, so no rule of prescription can apply, such as to authorize the court to presume against the record that the bankrupt court assigned the laud in question to the assignee.
The appellee in this case is in my judgment in very little better position than if there had been no bankruptcy proceedings, and it claimed under an assignee’s deed, which recited that James P. Lacey had conveyed to the assignee. If there had never been any possssion under such deed, surely the court would not hold that it would be presumed that Lacey had conveyed to the assignee, for the reason that the deed so recited. Lacey, the common source of title, being in possession, and there being no evidence of a change of possession, I think the only presumption which should be indulged in this case is that Lacey’s heirs have been in possession of this land since his death, and therefore have the title. I cannot understand how a presumption can be indulged to thus defeat the heirs, when it is conceded that the
Is it not more reasonable to presume that the record speaks the truth, and that the purchaser did not go into possession, or assert or claim title, because he had'none, than to presume that the record is imperfect, and that the purchaser was guilty of laches of the grossest kind for 40 years, and thereby acquired title by his own laches?