Parker v. Dillard

• Decision Date: 31 March 1881
• Citation: 75 Va. 418
• Parties: PARKER v. DILLARD AND ALS.
• Court: Virginia Supreme Court

75 Va. 418

PARKER v. DILLARD AND ALS.

Supreme Court of Appeals of Virginia.

March 31, 1881

1. All interest on property held by a bankrupt, and all property which he has fraudulently conveyed, come within the jurisdiction of the bankrupt court. But that court has no jurisdiction over property bona fide conveyed to a purchaser by the bankrupt before he is declared a bankrupt. And a creditor by judgment docketed against the bankrupt recovered before a bona fide conveyance of land, may proceed in a State court to enforce his judgmemt lien against said land.

2. Upon a bill to review a decree, the bill, answers and all proceedings in the cause are to be looked to, to ascertain whether there is error in the decree.

This was a suit in equity in the circuit court of Essex county brought by Nathan Parker against G. H. Dillard and Emma V his wife, and others, trustees, to subject certain real estate to satisfy a judgment which the plaintiff had recovered against Dillard. After the judgment had been recovered and docketed, Dillard sold and conveyed a a tract of land to John H. Smith. He conveyed another tract to R. P Dillard, in trust for his wife, Emma V., in consideration of her relinquishing her contingent right of dower in his other lands; and he conveyed the other lands to T. W. Tyler, in trust for the payment of his debts. He afterwards was declared a bankrupt, surrendering his interest in the land conveyed to Tyler in trust; and this land was sold by his assignee in bankruptcy free of all liens, under an order of the bankrupt court.

When the cause came on to be heard in June, 1876, the court dismissed the bill, apparently on the ground that the State court did not have jurisdiction of the subject; but that it should have been prosecuted in the bankrupt court. And upon a bill of review, the court being of opinion that it was not competent for the court to re-examine the evidence upon which the decree sought to be recovered was based, and that there was no error upon the face of said decree, sustained the demurrer to the bill of review and dismissed it. And thereupon Parker obtained an appeal to this court. The case is stated by Judge Burks in his opinion.

C G. Griswold, for the appellant.

Tho. Croxton and T. R. B. Wright, for the appellees.

OPINION

BURKS, J.

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 inventory filed with his petition was the land which had been conveyed, as before stated, to Tyler, trustee, to secure creditors, and the one with interest in a tract of fifty-four acres described.

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...