160 F. 142 | U.S. Circuit Court for the District of Massachusetts | 1908
This is a bill in equity brought by Morris, trustee in bankruptcy of Floyd, seeking a conveyance of land from. Small and Ring. The bill alleges that, within four months before his bankruptcy, Floyd mortgaged the real estate in question to Small; that no present value was paid by Small for the conveyance, and that the consideration therefor was an unsecured debt from Floyd to Small; that Floyd was then insolvent; that Small had cause to believe that he was insolvent, and that the conveyance constituted a preference within the purview of the bankrupt act, and was in fraud of creditors; that after bankruptcy, and without consideration, Small conveyed his rights to Hagar, who foreclosed under the power of sale contained in the mortgage, and bought in the title in Small’s behalf; that Hagar thereafter conveyed to Ring, who paid a part of the price in good faith;, that Small brought a bill in equity against Hagar and Ring, and that a decree was entered therein directing Ring to reconvey to Small upon an accounting. The bill before this court prays that Small be decreed to hold the premises in trust for Morris, and to convey them to the latter. To this bill Small pleaded in bar that his title was derived from Hagar, in whose favor the land court of Massachusetts had rendered a decree declaring Hagar entitled to the real estate. The plea further alleged that Morris had “due and sufficient notice of the proceedings in said land court,” as would appear from that court’s record. Upon this hearing the court has to determine the sufficiency of the plea.
The defendant Small contended in argument that Morris’ rights,.
Small urged that the failure of Morris to act upon the notice of the proceedings which he received proves that he slumbered on his rights, and so that he is barred from maintaining his bill in equity. But this construction of the plea is not warranted by its language. The due notice of the proceedings which was received by Morris may have been given him before he found that he had rights in the land, and he may have brought this bill as soon as possible after his discovery of these rights. At the argument this was alleged to have been the fact The plea in bar must be overruled.