The New York herald., 1875-08-31

SO far as II is necessary state them are as iollows-
Robert Anderson held four promissory notes OF Cocks
each for 81 500 and interest The notes secured
by mortgage upon real estate in the city of New Or
leans In January 1863 Anderson filed in the Second
District Court New Orleans petition for the seizure
and sale Of the niortgagcd premises claiming that the
sum Of sI3, 500 due upon the notes. Process
issued and property seized and sold Anderson became
the purchaser for the sum of ~, 500 The sale was
on the 81 Of March, 1868. In the same month he
filed petition in the Provisional Court of New
Orleans, claiming that Cocks was stl indebted
to him in the sum of $685. besides
costs and praying that Cocks and Charles Hyllestod
his agent should be cited 10 appear and answer On
the Both of May judgment by default rendered in
favor of Anderson for the of $S $40 with interest
according to the terms of the notes. and for the costs
under the execution issued upon this judgment Two
lots and the Improvements thereon were seized and sold
to Charles lizard for the of 81 $50 lizard entered
into possession and has refused give up the property
to Cocks. Cocks 1ed this bill, lizard demurred and
the demurrer was sustained and the bill dismissed The
brought By appeal to this Court Here the de-
reversed and the remandcd to the Cir
cult Court for further proceedings Cocks W lizard,
WALL 559l Thereafter in that court lizard answered
Lewis, the appellant subsequently made defendant
In place of lizard and also answered Testimony
decrecd in favor of Cocks Thereupon Lewis appealed
TO this Court The is thus brought here second
time The bill claims relief upon three grounds
Fs,S-rhat the Provisional Court nuty and its Judg
ment against Cocks void .
no sehves o process & ws Iae upon h &
Cocks that Hyllesed such agent that valid
1Ad hat lizard was guilty Of gross frand touching the
friend o Cocks buy property him
that he thus deferred Others from bidding and himself bought
the property sacrifice that subsequently he acknowledged
70 locks his Trustee relation 70 ,he ana
the OF his integrity and impeed him to deny that
Cocks had right whatever tue property and that he
The bill tenders back tho purchase money paid
lizard with interest lizard answered and denied all
the material allegations OF the bill He also set up that
he had morgagcd the property to Lewis; that IL had
been seized and sold under that mortgages that Lewis
became the purchaser, lizards entire title thus becom-
ing divested out of him and vested in Lewis. The
answer of Lewis sets up the same facts rs TO his title,
and contains the same denals TO the averments of
the bill Hence the substitution of Lewis for lizard
defendant in this This outline is sufficient to
render intcigbe the several points TO which we shall
advert in dlsposing of the case The question of the
validity OF the Provisional Court Is not open
We have held it valid upon more than occasion
when the question has been before us Crhe Grapeshot
0 Wall, 129) The fraud charged upon lizard is ex-
prcssly denied by his answer, and s not sus-
tanned by the evidence, There is decided
preponderance against II. We are unanimous
upon the point. 1t could serve no useful
purpose to examine the proofs in detail in order to vim
dictate judgment Nothing further need be said
upon the subject The remaining part of the case is
that which relates to the allegations of the nonservice
of process. In considering the bill, must regard 1t
us being Just would be il it contained nothing but
what relates to this subject. Everything else must be
laid of view. 1t must be borne in mind that the
complainant is not IN possession OF the property II
the bill alleged only the nulity Of the Judgment under
which the premises were sold, by reason of the non
service of the original process in the suit wherefore the
defendant had no day IN court and judgment was rem
dercd against him by default and upon those grounds
had asked court oiequty to pronounce the sale void
and to TAX take the possession OF ,h the property
could such bill be sustained Such is the in hand
There nothing further left of it aud there is nothing
else before Viewed in this light it seems to us TO
be an action of eecmcnt the form of bill in chan
cery According to the bill, excluding what relates
the alleged fraud there is plain and adequate remedy
at law and the is peculiarly of the character
where for that reason, court of equity will not inter-
pose. This principle in the English equity jurispru-
dence old the earliest period in its recorded his
tory. Spences Jurisdiction OF Courts OF Chancery 4OS
note B ID 420 note AZ The Court advert to the point
whether the judgment of the Provisional Court be
pronounced nulity without the legal representative of
Anderson the deceased plaintiff being before the Court
party but the first objection is fatal this is
not considered. Reversed
BANKRUPTCY DECISION.
John Doe, lessee of f. Valiant, assignee &C., VS.. s.
W. Chdress to the Circuit Court for the Middle
district of Tennessee Justice Hunt delivered the
opinion of the Court The questions presented in this
case arise upon the charge of the Circuit Judge the
jury and the refusal Of the Judge to make certain other
charges when requested Four requests to charge were
presented and refused, and three charges made
by the Judge to which exception was taken. The
principal question is this:-When attachment pro
ceedlngs regularly commenced levy made and the
property is in the possession of the Sheriff before the
filing of petition bankruptcy when there is stay
of proceedings other in the Bankrupt Court
to arrest the suit the State Court there being no
fraud sale is had under the judgment OF the State
Court deed is given by the Sheriff. and possession
taken under it. Can the title acquired under such sale
be attacked by the assignee coateray in suit of law
In other words, can the assignee allege that
under these circumstances the State Court had
no jurisdiction TO proceed IN the action
after an adjudication in bankruptcy and that title
passed to the purchaser under the Judgment of the State
Court? The defendants title rests upon purchase
under DEGREES IN the Court of Chancery of the State
of Tennessee, in which the proceedings com
menccd by attachment on the 10th and 9th days OF
April 1867. In April and June 1868, DEGREES OBJ.
tanned in these suits and on the 18th of September
1865 Sales were made under these DEGREES The pur-
chaser then entered into posscsson and the defendant
under them claims title and possession by virtue
of that purchase. Montgomery hled his petition to be
declared Il bankrupt the 18th of February 1868 This
months after the attachment proceedings had
been commenced and four months before the DEGREES
were obtained in those suits, and months before
! the sale took place under those DEGREES Montgomery
| was adjudged a bankrupt on the 9th of February,
/ 1868 This, again, was about seven months before
tho sale under State decrces took place. and it
| months after the actual commencement OF tho
attachment proceedings in the State Court The Ten
nessee Court of Chancery having jurisdiction of tho
subject of the proceeding in the attachment suits,
defence being nterposed by the assignee in the State
! Court and measures having been taken arrest
their proceedings TO transfer them to the Bankrupt
Court II power to take such steps existed and there
| being fraud proven or alleged of the opinion
! that good title was obtained under this decree The
fourteenth section of the Bankrupt act provides that
the register shall convey to the assignee all the estate
real and personal Of the bankrupt which shall relate
back to the commencement of the proceedings bank
ruptcy and thereupon by operation of law the title
all the property shall vest in the assignee although tho
Is then attached ON mesne process the property
OF the debtor and the conveyance shall dissolve any
such attachment made within lour months prcccd-
ing the commencement OF said proceedings. The title
pendentc lite is transferred by operation o law the
bankrupt to the assignee in bankruptcy. The convey
of the register operates would under ordinary
circumstances, the deed of person having the title
with dcrcnces-First, IL relates back the com
menccment of the bankruptcy proceeding; second,
the registers conveyance dissovcs any attachment that
has been made within four months previous to the
commencement Of bankrupt proceedings. Neither of
tho differences material in the second case The