Webb v. Barnwall
The bill of complaint brought by Amanda Sterling and her four sons against Barnwall and Gaynor, as assignees in bankruptcy, was dismissed on demurrer, solely, as appears from the opinion of the circuit judge, because the suit was barred by the limitation of suits by or against assignees in bankruptcy found in section 5057 of the Revised Statutes, to-wit: 'No suit, either at law or in equity, shall be maintainable in any court, between an assignee in bankruptcy and a person claiming an adverse interest, touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee.' The bill sets out that on the fifth day of February, 1873, Robert W. Smith was the owner of certain real estate in the town of Selma, in the bill fully described, and on that day he and his wife, Sarah, conveyed the same to Cary W. Butt in trust for the use and benefit of said Robert W. Smith and Charles Walsh; that afterwards said Walsh and Smith, being indebted to Edwin A. Glover in the sum of $20,000, caused the trustee, Butt, to convey this real estate, in which they had the sole beneficial interest, to said Glover, who received the same in satisfaction of the debt of August 31, 1873; that Glover thereupon entered into possession of said property, and that he and his devisees have retained such possession ever since; that, by the will of Glover, who died in 1874, the real estate in question was devised to Amanda Sterling and her sons, the complainants. The bill then alleges that Walsh and Smith were members of a copartnership with others, under the name of Walsh, Smith & Co., which owed the debt to Glover already mentioned as the consideration of the conveyance to him by Butt, the trustee; that said partnership and the individual members thereof, including Walsh and Smith, were declared bankrupts by the proper court on June 12, 1874, and that Henry W. Barnwall and William E. Gaynor were appointed assignees in said proceeding, and all the estate, both real and personal, of said bankrupts was by the register duly assigned to them. The bill proceeds to show that these assignees instituted an action of ejectment against complainants, who were in possession of the land under the will of Glover, to recover that possession. This suit was begun in the district court of the United States for the Middle district of Alabama, in October, 1876. A judgment was rendered against complainants, which was affirmed on appeal to the circuit court, December 19, 1877. Complainants allege that the plaintiffs in that suit recovered on the ground that the legal title, which controls in a court of law, never was in Butt, the trustee, but by the statute of uses vested immediately in the said Walsh and Smith. The bill then alleges that while the complainants may not have had the legal title, and so could not successfully defend the action at law, they have a perfect and just title in equity, which, in this suit, they ask the court to protect. They, therefore, pray for a decree to compel defendants to convey to them the strict legal title which they hold, and for an injunction against them in regard to the judgment, which they ask may be perpetual.
This bill was filed August 1, 1881, within 15 months after final judgment in the action of ejectment.
Wm. E. Earle, for appellant, John C. Webb, Adm'r, etc.
H. C. Tompkins and D. S. Troy, for appellees, Henry Barnwall and another, assignees, etc.
[Argument of Counsel from pages 194-196 intentionally omitted]
MILLER, J.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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