Chilton v. Metcalf

• Decision Date: 31 March 1911
• Citation: 136 S.W. 701,234 Mo. 27
• Parties: J. WILLIAM CHILTON, Appellant, v. WILLIAM I. METCALF et al
• Court: Missouri Supreme Court

136 S.W. 701

234 Mo. 27

J. WILLIAM CHILTON, Appellant, v. WILLIAM I. METCALF et al

Supreme Court of Missouri, First Division

March 31, 1911

Appeal from Shannon Circuit Court. -- Hon. W. N. Evans, Judge.

Affirmed.

J. W Chilton and James Orchard for appellant.

(1) Under the bankruptcy law of 1867, an assignee in bankruptcy could not act until his appointment or election had been approved of record by the court in which the proceedings were pending; and until such approval was made a register could not assign the bankrupt's effects to the assignee. 14 U S. Stat. at Lar. 517, sec. 13; In re Scheiffer, Fed. Cas No. 12,447, 21 Fed. Cas. 657; Ex parte Bryan, Fed. Cas. No. 2,061, 4 Fed. Cas. 499; 16 Am. and Eng. Ency. Law (2 Ed.) 716, par. e; Kleber's Void Judicial and Ex. Sales, sec. 473, p. 423. (2) Said bankruptcy law, and the amendment of June 22, 1874, required that an intended sale of lands of the bankrupt should be advertised three consecutive weeks in a newspaper or newspapers, designated by the court, or judge thereof; and a sale made without such notice was unauthorized and void and passed no title. National Bankruptcy Act, June 22, 1874, sec. 4; In re Hunter, Fed. Cas. No. 6,903, 12 Fed. Cas. 951; 17 Am. and Eng. Ency. Law (2 Ed.) 966-967; State ex rel. v. Baldwin, 109 Mo.App. 573; Melton v. Fitch, 125 Mo. 290; Otis v. Epperson, 88 Mo. 131. (3) The designation of the Cleveland Daily Herald and Western Reserve Chronicle, by Keith, register, as papers in which to publish notice of appointment of assignee, was not a designation of said newspapers to publish notice of sale of property. National Bankruptcy Act, March 2, 1867, sec. 14, U. S. Stat. at L. 517. (4) And even if the register in bankruptcy had authority to designate the newspapers in which such notice of sale should be published and did designate the Western Reserve Chronicle and Cleveland Daily Herald, for that purpose, a sale of said land by such assignee was unauthorized and void, unless such sale was advertised in both said papers. In re Hunter, supra; State ex rel. v. Baldwin, 109 Mo.App. 573. (5) The pretended sale of said land by Wm. I. Metcalf was invalid and void, and passed no title because not approved or confirmed by the court. National Bankruptcy Act, June 22, 1874, sec. 4; In re O'Fallen, 18 Fed. Cas. 600 (2 Dill. 548); In re Ewing, Jr., Bankrupt, 16 F. 753; Ex parte Bryan, supra; Osborn v. Baxter, 58 Mass. (4 Cush.) 406; Chase v. Van Meter, 140 Ind. 321; 17 Am. and Eng. Ency. Law (2 Ed.) 989; 16 Ib. 748; In re Gilton, 3 Biss. (U.S.) 144; Clark v. Sires, 193 Mo. 506; Bruden v. Taylor, 124 Mo. 17; Hancock's Appeal, 86 Mo.App. 14; Garner v. Tucker, 61 Mo. 432; Noland v. Barrett, 122 Mo. 181; Gulf Coast Canning Co. v. Foster, 17 So. 683. (6) And a deed made before the approval of such sale is void, and conveys no title. Clark v. Sires, 193 Mo. 506; Bruden v. Taylor, 124 Mo. 17. (7) The approval of such sale (as well as the approval of the appointment or the election of assignee and designation of newspapers for advertising the sale) must appear from the record. Such approval cannot be presumed. A court can speak through its records only. In re Scheiffer, 21 Fed. Cas. 657; Ex parte Bryan, supra; Clark v. Sires, 193 Mo. 506; Cummings v. Brown, 181 Mo. 718; State to use v. Scott, 31 Mo. 131; Maupin v. Franklin County, 67 Mo. 329; Kleber's Void Judicial and Ex. Sales, sec. 391, p. 348. (8) An unauthorized, unsigned, undated notation on the back of report of sale, "Sale confirmed and deeds ordered," is not an approval nor record of approval of a sale. Ex parte Bryan, supra; In re Scheiffer, supra; Clark v. Sires, supra; Cummings v. Brown, supra; Coonce v. Monday, 3 Mo. 373. (9) Nor does the settlement and discharge of the assignee operate as an approval of sales made by him. Melton v. Fitch, 125 Mo. 290; Clark v. Sires, 193 Mo. 506. (10) The clerks of U. S. District Courts, which had jurisdiction of bankruptcy proceedings under the national bankruptcy laws of 1867 and 1874, were required by law to keep a record "of all orders, decrees, judgments and proceedings of said courts." R. S. of U.S. sec. 794, 4 Fed. Stat. Ann. 75; National Bankruptcy Act, March 2, 1867, secs. 4 and 38; In re Scheiffer, supra; Ex parte Bryan, supra; In re Alexander, 1 Fed. Cas. 354. (11) Sales made by assignees in bankruptcy were judicial sales. National Bankruptcy Act, March, 1874, sec. 4; Kleber's Void Judicial and Ex. Sales, secs. 5 and 15, chap. 1; In re Ewing, supra; Leard's Appeal, 164 Pa. St. 435; Chase v. Van Meter, 140 Ind. 321; In re O'Fallen, 2 Dill. 548; Stephens v. Palmer, 10 Bosw. 60; Dresback v. Stein, 41 Oh. St. 701; Hancock's Appeal, 86 Mo.App. 14. (12) The rule of caveat emptor applies in its pristine vigor to the sales of land in bankruptcy proceedings under the law of 1867-1874; and the purchasers were chargeable with notice of all defects in such proceedings. Ex parte Bryan, supra; Alexander v. McCullough, 1 Weekly Notes, Case 609; Osborn v. Baxter, 58 Mass. (4 Cush.) 406; Gulf Coast Canning Co. v. Foster, 17 So. 684; Kleber's Void Judicial and Ex. Sales, sec. 464, p. 416. (13) Assignments in bankruptcy under the National Bankruptcy Law of 1867 and 1874, were in trust; and lands not lawfully sold or disposed of by the assignee reverted to the bankrupt and vested in him. King v. Remington, 36 Minn. 15; Taylor v. Irwin, 20 F. 615; Burton v. Perry, 146 Ill. 71; Smith v. Gordon, 22 Fed. Cas. 556; Osborn v. Baxter, 58 Mass. (4 Cush.) 406; 16 Am. and Eng. Ency. Law (2 Ed.) 741; Warner v. Howe, 44 Ill.App. 157. (14) It was error to admit the record of the assignee's deed from Wm. Metcalf to Robert Metcalf, without proof of loss of the original, or accounting for its non-production at the trial. Smith v. Phillipps, 25 Mo. 555; Sheehan v. Ins. Co., 53 Mo.App. 355; Blandeau v. Sheridan, 81 Mo. 556; Sims v. Gay, 66 Mo. 613.

James D. Lindsay for respondents.

(1) The adjudication in bankruptcy of Warner, the reference of the further proceedings by the court to the register, the appointment and qualification of the assignee, and the conveyance by the register to the assignee, divested said bankrupt of all title to the lands, and vested title in the assignee. Bankruptcy Act 1867, secs. 4, 13 and 14; Rules of Supreme Court of United States, 1874, V. X.; Hills v Alden, 2 Hask. 299; In re Mott, 6 F. 685; Crowley v. Hyde, 116 Mass. 589; Tuite v. Stevens, 98 Mass. 305; In re Burke, 15 N. B. R. 40. (2) The filing of the petition in bankruptcy operated as an attachment of the bankrupt's property; the adjudication passed it finally into the custody of the court; and the reference to the register, vested the title in him for conveyance to the assignee. Mueller v. Nugent, 184 U.S. 1; In re Wells, 114 F. 222; McFarlan v. Wells, 99 Mo.App. 641. (3). The title being divested out of the bankrupt, the lands sold, the proceeds applied upon his debts; the bankrupt discharged from his debts; and his debts remaining almost wholly unpaid, the title could not revert to him. Scruby v. Norman, 91 Mo.App. 517; Perry v. Carnes, 86 Mo. 652; Vanslyke v. Shryer, 98 Ind. 126; Atwood v. Thomas, 60 Miss. 162; Pickens v. Dent, 106 F. 653; Boyd v. Olms, 82 Ind. 294; Berry v. Gillis, 17 N.H. 9; Seaton v. Hinneman, 50 Ia. 395; Dessan v. Johnson, 66 How. Prac. 6; Peters v. Wallace, 4 S.W. 914; Foraast v. Hyman, 28 N. E. (Ill.) 801; Conner v. Express Co., 42 Ga. 37; Malone v. Martin, 2 S.W. 909; Herbst v. Bates, 13 Weekly Law Bulletin, 565; In re Alden, 16 Nat'l Bankruptcy Register, 39. (4) The register had authority, under the Act of 1867, and under the Rules of the Supreme Court of the United States, 1874, to sit in chambers, and dispatch the administrative business of the court. He could do all the things necessary to be done in administrative and uncontested matters, and could make all necessary orders in bankruptcy, except only such as were by the act itself specifically required to be made or done by the court. Bankruptcy Act, 1867, sec. 4; Rules Supreme Court U.S. 1874; Hills v. Alden, 2 Hask. 299; In re Burke, 15 National Bankruptcy Register, 40. (5) It was not essential to the validity of the sale that it should be confirmed by an order of record of the court. The act gave the court "upon application of any party in interest," complete supervisory power over sales, including power to order a resale. Bankruptcy Act 1867 (Amended 1874), sec. 15; In re Alden, 16 National Bankruptcy Register, 40. (6) If, however, confirmation by the court was necessary, then such confirmation abundantly appears from the record. No formal order, nor special form of words, was necessary. The report of sale, the other various reports of the assignee, charging himself with the money received from the sale of the land, his final report, showing such receipt, followed by the final order of record of the court, finding that he had fully and completely administered said estate, and ordering that proceedings be discontinued, constituted a complete and indubitable confirmation of the sale by the court. 17 Am. and Eng. Ency. Law (2 Ed.) 991; Agan v. Shannon, 103 Mo. 661; Grayson v. Weddle, 63 Mo. 523; Camden v. Plain, 91 Mo. 117; Henry v. McKerlie, 73 Mo. 416; Jones v. Manley, 58 Mo. 559; State ex rel. v. Hurt, 113 Mo. 97; Gilbert v. Cooksley, 69 Mo. 42; Long v. Joplin Mining Co., 68 Mo. 422; State ex rel. v. Evans, 176 Mo. 310. (7) It is the policy of the law to uphold judicial sales, and courts will not be astute in finding reasons for overthrowing them. 17 Am. and Eng. Ency. Law, 994; Evans v. Robberson, 92 Mo. 192. And especially is this so, after a great lapse of time, during which files may be lost or destroyed. Agan v. Shannon, 103 Mo. 668; Price v. Real Estate Assn., 101 Mo. 107. (8) The judgment will not be reversed because the record of...