75 Va. 418 | Va. | 1881
delivered the opinion of the court.
A brief statement of this case will show more clearly the grounds upon which it will be disposed of.
The appellant recovered a judgment against the appellee G. H. Dillard and others in November, 1868, and during the next month caused it to be duly docketed. At the date of the judgment, Dillard was the owner in fee simple of lands to which the lien of the judgment attached. In October, 1869, he sold, and by deed conveyed a portion of these lands to one John H. Smith. In November of the same year he conveyed another portion to T. W. Tyler, in trust to secure creditors, and at the same time he conveyed the residue to a trustee for the benefit of his wife during her life, remainder to her heirs, in consideration of his wife’s relinquishment of her contingent right of dower in the lands conveyed by the other deeds. All these conveyances were duly recorded. In September, 1872, on his own petition, he was adjudged bankrupt by the district court of the United States. The only real estate embraced in the
On the petition of the assignee of the bankrupt’s estate, asking a sale of the lands described in the inventory, the bankruptcy court, after the creditors had been commanded to show cause against the prayer of the petition and a report made by the register that no cause had been shown, on the 12th day of February, 1873, ordered the assignee to make sale of said lands free of liens. The sale was made and the bankrupt became the purchaser. The assignee made report of the sale, but whether the report was ever confirmed or not, or what further proceedings, if any, were afterwards taken in the court of bankruptcy, the record does not show.
In February, 1874, the appellant brought his bill in the circuit court of Essex county to enforce the lien of his judgment against the lands owned by Dillard at the date of the judgment, and which were subsequently aliened as aforesaid. Several orders and decrees were made and other proceedings had, which, for the purposes of this appeal, need not be noticed. In the progress of the case the bankrupt’s assignee was made a defendant. He filed a brief answer to the bill, in which he averred the adjudication in bankruptcy, his appointment as assignee, the sale and report hy him already referred to, and concluded by objecting to the jurisdiction of the circuit court, alleging that jurisdiction of the matter of the bill belonged to the federal courts.
At the hearing, the learned judge dismissed the bill on the sole ground, as appears by his opinion (made a part of the record) that jurisdiction to grant the relief prayed belonged exclusively to the courts of the United States, under the bankrupt law.
It was proper to dismiss the bill so far as it sought to
All the estate, real and personal, of the bankrupt (exempted property excepted), including all the property conveyed by him in fraud of his creditors, or in fraud of the law, is vested by the bankrupt act in the assignee. But he does not take anything more than the bankrupt had, except what may have been fraudulently conveyed. The language of the statute is plain enough. 14 Stat. at Large 522, ch. 176, §§ 14 (Revised Stat. §§ 5044, 5045, 5046), 35 (Revised Stat. §§ 5128, 5129).
At the time Dillard was adjudged bankrupt he had not even the semblance of an estate or interest, either in the land which had been conveyed to Smith, or in that which had been settled to the use of the bankrupt’s wife and her heirs, and neither the appellant, nor the assignee, nor any
The error in dismissing the appellant’s bill would seem to be error of law apparent in the decree—that is, in the record, exclusive of evidence—and therefore the demurrer to the bill of review should have been overruled. But if the bill of review was not the proper remedy, this court would still correct the error, as the present appeal is not only from the decree dismissing that bill, but also from the decree dismissing the original bill.
As, in our opinion, both decrees are erroneous, they will be severally reversed, and the cause remanded for further proceedings.
The decree was as follows:
This day came again the parties by their counsel, and the court, having maturely considered the transcript of the record of the decrees aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the said decrees are erroneous; therefore it is decreed and ordered, that the said decrees be severally reversed and annulled, and that the appellees, G. H.
Ddcree reversed.