Fisher v. Lewis

• Citation: 69 Mo. 629
• Parties: FISHER v. LEWIS et al., Plaintiffs in Error.
• Decision Date: 30 April 1879
• Court: United States State Supreme Court of Missouri

69 Mo. 629

FISHER

v.LEWIS et al., Plaintiffs in Error.

Supreme Court of Missouri.

April Term, 1879.

Error to Osage Circuit Court.--HON. A. J. SEAY, Judge.

Lay & Belch for plaintiffs in error.

Mosby & Clements and J. L. Smith for defendant in error.

HENRY, J.

This was a suit commenced by plaintiff in the Osage circuit court, to set aside a deed made by Edmond Lewis to his co-defendant, conveying a parcel of land in said county. Plaintiff obtained a judgment in a suit against Edmond Lewis and purchased said land under an execution issued on that judgment, and in his petition herein alleges that the conveyance by Edmond to James M. Lewis was made with intent to hinder, delay and defraud the creditors of said Edmond. There was a finding and judgment for plaintiff, and defendants have brought the case here on writ of error.

1. EXECUTION SALE PENDING BANKRUPTCY PROCEEDINGS.

The judgment and the levy of the execution upon the land in controversy, were prior to the date at which Edmond Lewis was adjudged a bankrupt; but it is contended that the sale having occurred after Lewis was adjudged a bankrupt, was a nullity. The adjudications to the contrary are innumerable. Seibel v. Simeon, 62 Mo. 257; Wilson v. City Bank, 17 Wall. 473; Mays v. Fritton, 20 Wall. 414; Biddle's Appeal, 68 Pa. St. 13; In Re Irwin Davis, 1 Sawyer C. C. Rep. 260; Hagan v. Lucas, 10 Peters 400; Johnson v. Bishop, 1 Wool worth C. C. Rep. 325; Peck v. Jenness, 7 How. 612; Pulliam v. Osborne, 17 How. 471; Buck v. Colbath, 3 Wall. 341; Mollison v. Eaton, 16 Minn. 430; Eyster v. Gaff, 91 U. S. 524; Thompson v. Moses, 43 Ga. 385. In the case of Eyster v. Gaff, supra, Miller, J., observes that: “The opinion seems to have been quite prevalent in many quarters, at one time, that the moment a man is declared a bankrupt the district court which has so adjudged, draws to itself, by that act, not only all control of the bankrupt's property and credits, but that no one can litigate with the assignee contested rights in any other court, except so far as the circuit courts have concurrent jurisdiction, and that other courts can proceed no further in suits of which they had at the time full cognizance; and it was prevalent practice to bring any person, who contested with the assignee any matter growing out of disputed rights of property, or of contracts, into the bankrupt court by the service of a rule to show cause, and to dispose of their rights in a summary way This court has steadily set its face against that view.”

2. FORMER JUDGMENT: assignee in bankruptcy: secured creditor.

The judgment against the assignee in the suit instituted by him in the district court of the United States for the western district of Missouri, against these defendants, for the purpose of having the conveyance in question set aside for fraud, is not binding upon this plaintiff, who had acquired a lien upon, and, for aught that appears in this record, a title to the land before the suit by the assignee was instituted. The sale by the sheriff to the plaintiff divested the title of the bankrupt, and the purchaser acquired a good title. 43 Ga. 383 and cases supra. The judgment in the suit of the assignee against Edmond Lewis and James M. Lewis, was rendered December 23rd, 1871, but when the suit was instituted does not appear, and we will not assume that it was before the plaintiff purchased the land at the execution sale. The execution sale occurred on the 3rd day of May, 1871. But whether the sale occurred before or after the commencement of the suit by the assignee, Fisher, by his judgment, had acquired a lien upon the land for the judgment debt, which was such an interest as made it necessary that he should be a party to any proceeding which was to affect his interest. It is contended that Fisher, as a creditor of Edmond Lewis, was represented in that suit by the assignee. As a general proposition it may be true that the assignee represents the creditors, but it cannot be maintained that he represents a creditor in a proceeding to take that creditor's property for the benefit of all the creditors. Fisher has a claim to this property hostile to that of the general creditors of the bankrupt, and was as necessary a party, if it was sought to bind his interest by the proceeding, as if the bankrupt's assignee had instituted a suit to recover as belonging to the bankrupt any species of property Fisher might have been in possession of, claiming to be the owner. Not having been a party to the suit instituted by the assignee, the judgment therein...