#### Bushnell Stevens, plaintiff, *vs.*John Hauser, defendant.

An action by an assignee in bankruptcy under the act of congress of 1841, or by his grantee, to recover possession of real property held adversely to the bankrupt, must, by the limitation prescribed by that act, be brought within two years after the date of the decree of bankruptcy, or if the cause of action had not then accrued, within two years after it did accrue.

(Before Bosworth, Oh. J. and Mohcrief and White, JJ.)

Heard May 11,1863;

decided May 30, 1863.

This was a motion for judgment upon a verdict for the defendant, taken subsequent to the opinion of the court at general term.

The action was to recover possession of a lot of land on the north side of Forty-Sixth street in the city of Hew York. The answer was a general denial. The trial was had before Hr. Justice Barbour and a jury, on the 25th of February, 1863. The defendant objected to various parts of the plaintiff’s evidence, and his objections being overruled, took exceptions to the decisions. After the plaintiff rested, the counsel for the defendant moved to dismiss the complaint, on the ground that there was no order sufficiently authorizing the assignee to sell, and that the defendant was in possession hostile to the rights of the plaintiff during the two years allowed him to set up his right of title, and he did not do it, so that this action was now too late.

By consent of counsel, judgment was taken for the defendant, subject to the opinion of the court at general term.

*51
      *John Townshend,*for the plaintiff.

I. The question is *res judicata*in this court. On a precisely similar state of facts this court ordered judgment for the plaintiff. *(Stevens*v. *Palmer, Nov.*1862. *Since reported in*10 *Bosw.*50.)

II. The plaintiff was not barred by lapse of time. The two years’ limitation prescribed by section 8 of the United States Bankrupt Law did not apply.

(a.) This was the express point decided May 20th, 1862, by Judge Nelson in the United States circuit court, *“In the matter of Conant, a bankrupt.”*His language is:

“ The limitation only applies to suits growing out of disputes in respect to property and rights of property of the bankrupt, which came to the hands of the assignee, and to which adverse claims existed while in the hands of the bankrupt, and before the assignment.” “ A short bar to suits by limitation, either by the assignee or the "adverse claimant, furnished a fit and appropriate remedy against delay, where compromise was impracticable. The last clause of the section seems conclusive in favor of this construction. The time from which the two years’ limitation begins to run is the date of the declara-' tion and decree of *bankruptcy;*or, if the cause of action had not then accrued, two years after it had.”

“ The limitation has no reference to suits growing out of the dealings of the assignee with the estate after it came into his hands. These were matters for which he might be made personally responsible, and no reason existed for changing the general period of limitation any more than in the case of any other trustee dealing with trust property.”

“-There certainly could be no reason for applying the short term in favor of persons dealing with the assignee, in respect to the estate of the bankrupt after it came into his hands, and the statute makes the limitation mutual.”

*(b.)*An additional reason for holding the limitation inap*52plicable is, that the statute having been repealed in March 1843, can not affect causes of action arising after that date.

' III. If the statutory bar was applicable, the defendant was , not in a position to avail himself of it; it was not set up in his answer, and was therefore, inadmissible on the trial. *(Code,*§§ 74, 149.) .

*George W. Stevens,*for the defendants,

Insisted that the exceptions to the admission of evidence were well taken, and also that more than two years having elapsed since the decree of bankruptcy was made, and since the cause of action accrued, this suit could not be maintained. *(Bankrupt Act,*§ 8. *Paulding*v. *Lee,*20 *Alabama Rep.*753. *Cleveland V. Boerum,*27 *Barb.*252; *S. C.*24 *N. Y. Rep.*613.) And that the possession of the defendant was hostile to the title of Tallmadge and Waddell. *(Sherry*v. *Frecking,*4 *Duer,*452.)

By the Court, Moncrief, J.

It appears by the case presented upon the hearing of the motion for judgment upon the verdict had upon the trial of the issues of fact by a jury, this case presented only questions of law, whereupon the presiding justice directed a verdict subject to the opinion of the court at general term, and a verdict pursuant to that direction being ' rendered *for*the defendant, the justice ordered that applica- ' tion for judgment on said verdict be made at the general term; in such a case the application for judgment must be made at the general term. *(Code,*§ 265.) A verdict having, at the trial, been directed in favor of the defendant, the rulings thereupon against him can not be considered upon this motion. *“*The rule is to examine the decisions made by the (circuit) judge *against*the party who has *lost*the verdict, and to grant or refuse a new trial according as we find them erroneous or otherwise.” *(Elsey*v. *Metcalf, 1 Denio,*323. *Rogers*v. *Murray,*3 *Bosw.*357.)

It appears that on Saturday, the 10th day of December, 1842, one Daniel B. Tallmadge was, in the district court of *53the United States for the southern district of New York, “ declared and decreed a bankrupt, pursuant to the act of congress entitled £ An act to establish a uniform system of bankruptcy throughout the United States/” passed August 19, 1841. And it was further ordered by the court “that the clerk should certify and deliver that- decree to William 0. H. Waddell, the official or general assignee in bankruptcy, appointed and designated under the rules and regulations of the court.”

The order of appointment of Waddell under date January 4th, 1842, was read in evidence.

The present action is an action of ejectment brought by the plaintiff claiming title to one of several lots of land, being part of what is known as the “ Hermitage Tract,” whereof Tallmadge was possessed, or in which he had some interest or claim, at the time of fus being so declared a bankrupt.

Whatever estate, rights or interests were possessed or claimed by the bankrupt (Tallmadge) passed to and became vested in the general assignee, by virtue of the decree declaring him a bankrupt, &c. *(Ryerss*v. *Forwell,*9 *Barb.*615.) The conveyance under which the plaintiff makes his claim, so purports. It grants unto “ Bushnell Stevens, his heirs and assigns forever, all the right, title and interest which the said *bankrupt had,*and which by virtue of the decrees and orders above cited, and of the act entitled *‘*An act to establish a uniform system of bankruptcy throughout the United States/ as aforesaid, *became vested*in” such assignee, and which he had a right to convey.

It did not appear that the general assignee in bankruptcy, had ever asserted or pretended to have any title, or claim of title or interest in or to the premises in question, unless such conveyance, some nineteen years after the decree of bankruptcy, can be treated as such.

There was proof that the defendant had been in possession sixteen or seventeen years.

Judge Nelson, in his opinion in the matter of Oonant, (Mss. May 20, 1862, says ® * “A short bar to suits by *54limitation, either hy the assignee or the adverse claimant, furnished a fit and appropriate remedy against delay, where compromise was impracticable. The last clause of the section seems conclusive in favor of this construction. *The time 'from which the tioo years’ limitation begins to*run, *is the date of the declaration and decree of*bankruptcy, or if the cause of action had not then accrued, two years after it had.” * * The remaining portion of the opinion not applicable to the present case, (as read from 'the extract upon the plaintiff’s points,) seems to me to indicate that the question to be determined in that case was whether a claim ¿rising out of dealings made with the assignee after the acquisition of title, possession, &c. was within the limitation, anc^it was held it was not barred.

In the present case the cause of action, if any, was perfect at the date of the decree made in 1842 ; if at that time the official assignee had gone into possession of this lot, claiming title, and the defendant or some other adverse claimant desired to dispute the title of the bankrupt or his assignee, by the plain terms of the act, and following this decision in its interpretation, the action must have been brought within two years, and, if not so brought, is forever barred.

The decision cited by the counsel for the defendant, *(Cleveland v. Boerum,*24 *N. Y. Rep.*613,) while entitled to great weight as expressing the opinion entertained by four of the most eminent jurists in this state, was not the opinion of the court, and can not therefore be said to be decisive on the point.

It was not shown that the bankrupt was in possession of the premises in question, at the time of the making of the declaration and decree of bankruptcy, or indeed that he ever was in possession. There was no proof of possession by the assignee, nor of a claim or pretense of a right of possession. It would seem to furnish some light upon the interest which the assignee presumed the bankrupt had at the time of the making of the decree, that he states in his application for leave to sell and dispose of the *“*interest which the said bankrupt had, and which became vested in the assignee by the decree aforesaid,” that it can be sold only *“*for a *nominal*
      *55consideration, and the costs of the assignee and his counsel therein, and the title hereby sought *being of no pecuniary value*to the estate.”

Under such circumstances we think it plain that the plaintiff in this action can not recover. The complaint was therefore properly dismissed, and judgment should he entered upon the verdict, for the defendant, with costs.