26 N.J. Eq. 202 | New York Court of Chancery | 1875
On the 15th of 'November, 1871, Henry T. líelmbold ¡ras the owner of the mortgaged premises, which were sold under the execution in the foreclosure suit in this court, brought by •Toed Parker and others against Henry T. Helmbold and others. They were then subject to the mortgage of $35,000, which was foreclosed in that suit. On that day he entered into a written agreement with Lewis T. Phillips, for the sale of the property to the latter, for $70,000, in which sum was to be included the amount of that mortgage, the payment of which Phillips was, consequently, to assume. The deed was to be delivered on the 29tli of November, 1871, and the title was to be in fee simple absolute, and satisfactory to the counsel of Phillips, and free and clear of all right of dower, and other liens and encumbrances of every description, except the mortgage, and to be conveyed by full covenant warranty deed, in which Helmbold’s wife Avas to join. Helmbold having failed to comply Avith his agreement, Phillips, on the
In the foreclosure suit, Phillips and his wife filed an answer, claiming that, under the sale under the judgment and execution, the former obtained the estate which Helmbold had in the mortgaged premises on the 16th of May, 1871, the time when the attachment in the suit in which judgment was entered became a lien on the mortgaged premises, and that that estate was an absolute and indefeasible estate of inheritance in fee simple,
The assignee in bankruptcy has filed his petition in this suit, praying that the money in court may be ordered to be transferred to this suit, and may be paid to him. This application is resisted by Phillips, and by "Wyatt, assignee in bankruptcy of Menet, who, at the time of his bankruptcy, (since the making of the final decree in the foreclosure suit,) owned the claim of Hudson and Menet. Wyatt answered the petition. Phillips claims that he is entitled to be paid out of the money his expenses, including counsel fees, and cost of searches incident to perfecting the title; for he claims that he permitted the foreclosure'to take place, in order to rid the property of the inchoate right of dower of Mrs. Helmbold, and he also claims that he was compelled to buy an outstanding title superior to Helmbold’s for half an acre of the mortgaged premises. Wyatt opposes the claim of Helmbold’s assignee, so far as regards the amount which the former claims to be due on the second attachment, on the ground that the title of Helmbold’s assignee to the money is inferior, and
The claim of Ilelmbold’s assignee to so much of the fund as Helmbold himself would be entitled to, would be allowed. Wyatt insists that the judgment in the second attachment is binding on this court, notwithstanding the provision of the bankrupt law and the proceedings in bankruptcy against Helmbold. That attachment was issued after the petition in bankruptcy against Helmbold was filed., The bankrupt law (§ 14) provides that, as soon as the assignee is appointed and qualified, the judge, or, where there is no opposing interest, the register, shall, by an instrument under his hand, assign and convey to the assignee all the estate, real and personal, of the bankrupt, with all his deeds, books, and papers relating thereto, and such assignment shall relate back to the commencement of the proceedings in bankruptcy, and thereupon, by operation of law, the title to all such property and estate, both real and personal, shall vest in the assignee, although the same is then attached on mesne process, as the property of the debtor, &c. At the time when the attachment in question was issued, there had been no adjudication of bankruptcy against Helmbold, but there had been a petition in bankruptcy filed. The subsequent adjudication and assignment conveyed Helmbold’s property to his assignee, and the
The bankrupt law, indeed, directs that the assignment be recordedbut it has been repeatedly held that the recording of the assignment is not essential to the validity of the transfer to the assignee, and is not designed to operate asunder the state registry acts. Bump on Bankruptcy (7th ed.J 124. Nor can the objection based on the limitation declared! by the second section of the bankrupt law, prevail. That section provides that no suit at law or in equity shall, in any ease, be maintainable by or against the assignee, or by or against any person claiming an adverse interest touching the property and rights of property of the bankrupt, in any court, unless it be brought within two years from the time the cause of action accrued for or against the assignee.
The limitation does not extend to or include such an application as that under consideration. In Re Masterton, 4 Nat. Bank. Reg. 180, 553; Sedgwick v. Casey, Ib. 164 , 496; Davis v. Anderson, 6 Ib. 145. Though the decree in the fore-
closure suit, directing the payment of money into court, contains a provision that part of the money shall remain to answer the claim of Hudson, and Menet, when established, and their costs- of suit, yet that direction has not the force or effect of an adjudication as against Helmbold’s assignee. Helm-bold’s assignee would be required to do equity before he would be permitted to take the fund. If, as alleged, Helm-bold proves to-have had no title to the half acre, there would be no justice in permitting his assignee to take out of this court the price paid by Phillips, under the contract between him- and Helmbold, for it. Under that contract the latter was bound to convey the property in fee simple, free of dower and- all- encumbrances, and by deed of warranty with full