TERM, 1870.]

Johnson v. Geisriter.

Geisriter answered, setting up that W. W. Johnson had filed. his petition in bankruptcy; that, at the time of filing said petition, said Johnson was the owner of the note sued on; that said note was not included in Johnson's schedule of assets, and that he had no right or authority to assign the same; that said W. W. Johnson, long after the filing of said petition in bankruptcy, was the owner of said note; that the assignment to Ben. S. Johnson, the plaintiff, was and is null and void, and that said plaintiff acquired no legal title by reason of said assignment.

To this answer the plaintiff demurred on the ground that "the answer does not state facts sufficient to constitute a defense."

The court overruled the demurrer, the plaintiff rested, and judgment was for the defendant. The plaintiff appealed.

The question presented is whether a bankrupt can assign property that ought to have been scheduled, after having filed a petition.

The demurrer admits the filing of the petition of bankruptcy, by W. W. Johnson, the ownership by him of the note at the time of filing the petition, that it was not included in the schedule of assets of said Johnson, and that long after the filing of the petition in bankruptcy, Johnson was the owner of the note.

The appellant urges that a bankrupt's assets do not pass to the assignee until the assignee has been appointed and qualified. The bankrupt act requires the petitioner to make a schedule of his assets and liabilities. It also declares that, upon the appointment of the assignee and his qualification, 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 interest, real and personal, of the bankrupt, and that such assignment shall relate back to the commencement of said proceedings in bankruptcy; and therefore, by operation of law, the title to all such property and estate, both real and personal, shall vest in said assignee, * and shall dis

*

Johnson v. Geisriter.

[DECEMBER solve any attachment made within four months next preceding the commencement of said proceedings. The 11th section. of the act declares: "The filing of such petition shall be an act of bankruptcy, and such petitioner shall be adjudged a bankrupt."

The appellant urges that the answer does not disclose that the petitioner had been adjudged a bankrupt, or that an assignee had been appointed and qualified. The language of the 11th section is, that "the filing of the petition shall be an act of bankruptcy, and such petitioner shall be adjudged a bankrupt.” We construe this language to mean that a petitioner shall be deemed a bankrupt from the day on which he files his petition.

The moment the petition is filed the bankrupt is civilly dead. During the interval existing between the filing of the petition and the appointment of the assignee, a condition of things exist not unlike that in the case of a person dying intestate, and before the appointment of an administrator. On the death of a person intestate, no one is authorized to dispose of or assign his assets. A bankrupt is civiliter mortuus, from the day on which he files his petition, and during the interval, between the filing of the petition and the appointment of the assignee, no assignment of his assets can be made. A judg ment rendered against a bankrupt, after the filing of the petition, and before the appointment of an assignee, is as much a nullity as a judgment rendered against a deceased person, who has no legal representative. If no valid judgment can be rendered against a bankrupt at such a time, it is not at all probable that the law gives him the power to make a valid assignment of assets that should, and which the appellant admits, ought to have been placed in the schedule.

The judgment of the Jefferson county court is affirmed with

costs.

The appellant presented a claim against the estate of the deceased for $1520, founded upon a promissory note, which claim was allowed, duly classed and ordered to be paid.

The appellant then filed his bill in equity and prayed an injunction against the collection of the claim, and that the order and judgment of the probate court be declared void, upon the ground that the only consideration for the note was certain negro slaves, sold in the year 1859, by the appellee to the deceased, in his life-time.

The appellee answered, made a feeble attempt to show that he had received pay for the slaves and then loaned part of the

money.

Upon the hearing in the circuit court, the chancellor dismissed the bill for want of equity, and decreed costs against the appellant, from which decree he appealed to this court.

The only question involved in this case was decided by this court in the case of Jacoway v. Denton, 25 Ark. 265. That case determined the validity of the notes given for slave property before the attempted secession of the State.

The decree of the circuit court is in all things affirmed with costs.

MCCLURE, J., dissenting, says:

I dissent on the grounds given in Kaufman v. Barb.

23

26 48 e73 350

Stephens v. Holmes, et al.

STEPHENS HOLMES, et al.

[DECEMBER

VENDOR'S LIEN-Tax Title-Neither the legal or equitable title to lands or town lots, sold for the non-payment of taxes, vests in the purchaser or holder of the certificate of purchase, until the execution and delivery of the collector's deed, and the relation of vendor and vendee does not exist between the purchaser and owner until such execution and delivery. REDEMPTION.-The owner, in order to redeem, is not required to pay to the purchaser taxes paid by him subsequent to the purchase and before redemption.

Appeal from Pulaski Chancery Court.

Hox. T. D. W. YONLEY, Chancellor.

M. L. Rice, for appellant.

J. W. Faust, for appellees.

WILSHIRE, C. J.

This is a bill filed in the Pulaski chancery court by B. M. Stevens, against Rebecca B. Holmes, (formerly Rebecca B. Ryan), Dr. — Holmes, Henry S. Rymal and Edwin T. Linsley, the object of which was to enforce a vendor's lien.

52

The facts are briefly these: Stevens, on the 15th day of June, 1866, at a sale of lands, in Pulaski county, belonging to nonresidents, for the payment of taxes, purchased certain lands belonging to Mrs. Rebecca B. Ryan, (now Rebecca B. Holmes), for the sum of $255 5%, being the amount of taxes and penalty due on said lands, and the cost of the sale thereof; that he afterwards paid the taxes assessed upon said lands for the year 1866, amounting to $132; that after that, on the 16th day of July, 1867, said Rebecca B. Ryan (now Holmes) paid to Stevens the sum of $255, the amount paid by him at the tax sale for the land, and, also, the sum of $27 for improvements made by him on said lands; and thereupon Stevens

TERM, 1870.]

Stephens v. Holmes, et al.

transferred, by assignment in writing, the certificate of purchase of the lands, to said Rebecca B. Ryan, in the following language:

"LITTLE ROCK, JULY 16, 1867.

"I hereby assign and transfer all my right, title, claim and interest to the within described lands to Rebecca B. Ryan, for value received, acquired by tax sale for the year 1865. B. M. STEVENS.

"Signed: "Attested by B. F. Rice and J. W. Faust." That the complainant (Stevens) has since demanded of said Rebecca B. Holmes, and her husband, Dr. — Holmes, as, also, of the two other defendants, who hold under said Rebecca B. Holmes, by purchase and as tenants, the payment to him of the taxes on said lands for the year 1866, amounting to $132, paid by him, together with one hundred per centum thereon, which he alleges they refuse to do; and he prays that the same be declared a lien upon the lands, and the defendants directed to pay him the amount found to be due him, and, in default thereof, the lands be subjected to the payment thereof,

etc.

The defendants demurred to the bill for want of equity, the court below sustained the demurrer and dismissed the bill, and the complainant appealed to this court.

The statute under which these sales were made, provides that lands and town lots belonging to non-residents of the county, in which they are situated, when sold for the payment of taxes, the non-resident owners of such lands may, within twelve months from the time of the sale thereof, redeem the same by paying or tendering to the purchaser of such lands, his legal representatives or lawful agents, the amount of taxes and penalty paid thereon, together with the costs of such sale and one hundred per centum on the whole amount paid by such purchaser, and shall also pay, or tender, to the purchaser, or his legal representatives, the true value of any improvements made on such lands, etc. See Gould's Digest, Sec. 143