[506] required to account to the partnership for the property. Kahn v. Smelting Co. 102 U. S. 641 26:266]. The partnership between Arms and Kimberly was not a mining partnership, in the proper sense of that term. It was not a partnership for developing and working mines, but for the purchase and sale of minerals and mining lands, and in that respect was subject to the rules governing ordinary trading or commercial partnerships. It can no more be called a mining partnership than a partnership for the purchase of the products of a farm and the lands upon which those products are raised, can be called a partnership to farm the lands. It follows from the views expressed that the decree of the Court below must be reversed and the cause remanded with directions to confirm the report of the special Master, and to take further proceedings not inconsistent with this opinion; and it is so ordered. ROBERT MCKENNA ET AL., Piff. in Err., D. J. LAWRENCE SIMPSON, as Assignee Bankruptcy, ET AL. (See S. C. Reporter's ed. 506-512.) Mr. Wm. M. Randolph, for plaintiffs in error: The right of recovery of the assignee in bankruptcy depends entirely upon the provisions of the Act of Congress establishing the system of bankruptcy. Glenny v. Langdon, 98 U. S. 29 (25:46); Trimble v. Woodhead, 102 U. S. 647 (26:290); Moyer v. Dewey, 103 U. S. 301 (26:394). A state court has jurisdiction of an action by an assignee in bankruptcy to recover a debt due the bankrupt. Kidder v. Horrobin, 72 N. Y. 159. A state court has jurisdiction of an action by an assignee in bankruptcy to recover property conveyed by the bankrupt in fraud of his creditors. Barton v. Geiler, 108 U. S. 161 (27:687); Olcott v. Maclean, 73 N. Y. 223. This court has jurisdiction judgment by writ of error. over the state O'Brien v. Weld, 92 U. S. 81 (23:675); Sharpe v. Doyle, 102 U. S. 686 (26:277); Factors & T Ins. Co. v. Murphy, 111 U. S. 738 (28:582); Hill v. Harding, 107 U. S. 631 (27:493); Palmer v. Hussey, 119 U. S. 96 (30:362); Winchester v. Heiskell, 119 U. S. 450 (30:462); Jenkins v. Ininternational Bank, 127 U. S. 484 (ante, 189); Mace v. Wells, 48 U. S. 7 How. 272 (12:698); Peck v, Jenness, 48 U. S. 7 How. 612 (12:841); Bush v. Person, 59 U. S. 18 How. 82 (15:273). Suit by assignee in bankruptcy to set aside fraudulent conveyances-may be brought in state court review of state judgment-jurisdiction of this court-federal question. 1. An assignee in bankruptcy, appointed under the Bankrupt Law, might bring suit in the District Court of the United States to set aside a convey ance made by the bankrupt to defraud his creditors; where he did so, this court would have jurisdiction to review the decree of the district court. 2. But the assignee in bankruptcy was not precluded from proceeding in the state court to set aside such alleged fraudulent conveyances. 3. When the assignee resorted to the state court, and no question was there raised as to his power under the Acts of Congress, or the rights vested in him as assignee, the proceedings were governed, and the judgment of the court upon the validity of the Conveyances was subject to review, in the same manner and to the same extent as proceedings of a similar character by a creditor to set aside conveyances in fraud of his rights by a debtor. 4. Where such proceedings were taken in the state court and no decision was made therein against the validity of any statute of, or authority exercised under, the United States or any immunity claimed under the Constitution of the United States, this court has no jurisdiction to review the state decision. 5. The decision of the state court as to what should be deemed a fraudulent conveyance does not present any federal question, nor does the application by the court of the evidence in reaching that decision raise one. [No. 767]. Submitted Jan. 4, 1889. Decided March 5, 1889. I State of Tennessee, fupreme Court of the N ERROR to the Supreme Court of the firming the decree of the Chancery Court of Shelby County, in favor of complainant, adjudging that the title to lands was in him as assignee in bankruptcy and that he recover the land and possession thereof. On motion to dismiss, on the ground that this court has no jurisdiction. Dismissed. The facts are stated in the opinion. The assignee takes only such rights as the bankrupt had at the date of his bankruptcy, and is estopped to assert any claim of title where the bankrupt himself would be estopped to assert such claim. Donaldson v. Farwell, 93 U. S. 634 (23:995); Dudley v. Easton, 104 U. S. 99 (26:668); Yeatman v. N. O. Sav. Inst. 95 U. S. 766 (24:590); Porter v. Lazear, 109 U. S. 86 (27:865); Warren v. Moody, 122 U. S. 136 (30:1109). The evidence should be confined strictly to the allegations of the facts. Stearns. v. Page, 48 U. S. 7 How. 819, 829 (12:928, 932); Moore v. Greene, 60 U. S. 19 How. 69 (15:533); Beaubien v. Beaubien, 64 U. S. 23 How. 190, 208 (16:484, 488); Noonan v. Lee, 67 U. S. 2 Black, 508 (17:281). A party is not allowed to state one case by his bill or answer and make out a different one on proof. Patton v. Taylor, 48 U. S. 7 How. 159 (12: 649); Voorhees v. Bonesteel, 83 U. S. 16 Wall. 29 (21:270); Johnson v. Luckado, 12 Heisk, 270; Furman v. North, 4 Baxt. 296. A debt barred by the Statute of Limitations is not provable in bankruptcy. Re Ray, 2 Ben, 57-8; Re Cornwall, 9 Blatchf. 114; Re Kingsley, 1 Lowell, 216. A judgment barred by the Statute of Limitations cannot be the basis of a creditor's bill for setting aside a fraudulent conveyance. Wait, Fraud. Conv. $$ 77, 79; Edwards v. Mo McGee, 31 Miss. 143; Fox v. Wallace, 31 Miss. The Supreme Court of Tennessee erred in making its decision, and in overruling the exceptions. Smith v. Greer, 3 Humph. 118, 121-123; Burkey v. Self, 4 Sneed, 121, 123-124; Nicholas v. Ward, 1 Head, 323; Ricketts v. McCully, 7 Heisk. 712; White v. Bettis, 9 Heisk. 647; Perkins v. Perkins, 1 Tenn. Ch. 537, 543-547. The declarations of a grantor, after he has conveyed the property and has parted with his dominion over it, are not admissible in evidence against his grantee. Trotter v. Watson, 6 Humph. 509; Neal v. Peden, 1 Head, 546; Vance v. Smith, 2 Heisk. 343, 353. Marriage is a valuable consideration. Prewit v. Wilson, 103 U. S. 22 (26:360); Peck v. Carmichael, 9 Yerg. 325; Mills v. Haines, 3 Head, 332. The settlement was a proper one, and made for a valuable consideration, and no creditor was defrauded. Tiffany & Bullard, Trusts & Trustees, 3; Perry, Trusts, § 66, 359; Neves v. Scott, 50 U. S. 9 How. 196 (13:102); 54 U. S. 13 How. 268 (14:140); Nichols v. Eaton, 91 U. S. 716 (23:254). A suit may be brought to enforce the trust verbally agreed upon, making proof of the fact of the agreement. McCammon v. Pettitt, 3 Sneed, 242; McLellan v. McLean, 2 Head, 685; Nichols v. Cabe, 3 Head, 92; Butler v. Rutledge, 2 Coldw. 4. Deeds of conveyance as between the parties operate whether they are registered or not. Hays v. McGuire, 8 Yerg. 92; Owen v. Owen, 5 Humph. 352; Green v. Goodall, 1 Coldw. 404, 412; Stewart v. Platt, 101 U. S. 731 (25:816). A fraudulent conveyance of property is good except as to the creditors of the grantor. Battle v. Street, 85 Tenn. (I Pickle) 282; Williams v. Lowe, 4 Humph. 62; Hubbs v. Brockwell, 3 Sneed, 574; 1 Story, Eq. Jur. §371. If Robert McKenna had had control of the property, and had received the rents and profits of it, such facts would not have constituted a fraud against his creditors, nor have subjected the property or its proceeds or income to their demands or claims. Aldridge v. Muirhead, 101 U. S. 397 (25: 1013); Hamilton v. Bishop, 8 Yerg. 33; Baldwin v. Baldwin, 2 Humph. 473; Adams v. Collier, 122 U. S. 382 (30:1207); Adams v. Adams, 88 U. S. 21 Wall. 185 (22:504). No formal delivery of a deed is necessary. cumstances. Thompson v. Jones, 1 Head, 574; Corley v. Corley, 2 Coldw. 520; McEwen v. Troost, 1 Sneed, 186; Saunders v. Harris, 1 Head, 185; Nichol v. Davidson Co. 3 Tenn. Ch. 547. No order of removal in the state court was necessary, but the cause was removed by the mere fact of filing the petition and giving the bond, and the accepting the petition and the approving of the bond by the state court. Fisk v. Union Pac. R. Co. 6 Blatchf. 362; Hatch v. Chicago, R. 1. & P. R. Co. 6 Blatchf. 105; Osgood v. Chicago, D. & V. R. Co. 6 Biss. 330; Connor v. Scott, 4 Dill. 242; Burlington, C. R. & N. R. Co. v. Dunn, 122 U. S. 516, 517 (30:1160). In order to prevent the operation of the Statute of Limitations because of the fraudulent concealment of the cause of action, the bill must set out specifically the fact of concealment, and the manner in which it was effected; and the allegations must be established by the proof. Moore v. Green, 60 U. S. 19 How. 69 (15:533); Bailey v. Glover, 88 U. S. 21 Wall, 342 (22:636); Wood v. Carpenter, 101 U. S. 135 (25:807); Mercantile Nat. Bank v. Carpenter, 101 U. S. 567 (25:815); Wood, Limitations, § 275: Reeves v. Dougherty, 7 Yerg. 222. The deed of Robert McKenna to Rose, with the covenants of seisin in fee, good right to convey, and general warranty of title, operated afterwards, when Robert McKenna bought the land under the consent decree, to vest such title as he acquired by that purchase by way of estoppel upon him, in Mrs. Kirkup, the vendee of Rose, and in the vendees of Mrs. Kirkup; and such estoppel is equally effectual against his assignee in bankruptcy. Henderson v. Overton, 2 Yerg. 398; Susong v. Williams, 1 Heisk. 630; Ruffin v. Johnson, 5 Heisk, 609; Kerbough v. Vance, 6 Baxt. 113; Bush v. Person, 59 U. S. 18 How. 82 (15:273). Messrs. C. W. Metcalf and S. P. Walker, for defendants in error: The assignee alone is authorized to file a bill to set aside fraudulent conveyances of property, made by the bankrupt. Glenny v. Langdon, 98 U. S. 20 (25:43); Trimble v. Woodhead, 102 U. S. 647 (26:290); Moyer v. Dewey, 103 U. S. 301 (26:394). Such suit may be brought by the assignee in the state court. Goodrich v. Wilson, 119 Mass. 429; Clark v. Ewing, 3 Fed. Rep. 83; Barton v. Geiler, 3 Lea, 296; Same v. Same, 108 U. S. 161 (27:687); Olcott v. Maclean, 73 N. Y. 223. In the case at bar the decision of the state court was not against the title of the assignee. Barton v. Geiler, 108 U. S. 161 (27:687); Fac tor's & T. Ins. Co. v. Murphy, 111 U. S. 739 (28: 583); Peck v. Jenness, 48 U. S. 7 How. 618 (12: 843); O'Brien v. Weld, 92 U. S. 81 (23:675); Jenkins v. International Bank, 127 U. S. 484 (ante, 189). False recitals are the strongest evidence of fraud. Gibbs v. Thompson, 7 Humph. 179; McCrasly v. ilasslock, 4 Baxt. 1. The vital question is, always, the good faith of the transaction. Lloyd v. Fulton, 91 U.S.479-485 (23:363, 365); Jones v. Clifton, 101 U. S. 225 (25:908). What evidence will make out a case of delivery has been several times considered by this court. Younge v. Guilbeau, 70 U.S. 3 Wall. 636 (18: 262); Parmelee v. Simpson, 72 U. S. 5 Wall. 81 (18:542); Gould v. Day, 94 U. S. 405 (24:232); Calhoun Co. v. Am. Emigrant Co. 93 U. S. 125 (23:826); U. S. v. Le Baron, 60 U. S. 19 How 73 (15:525); Conner v. Long, 104 U. S. 230 (26: 724). Mr. Justice Field delivered the opinion of [507] the court: This was a suit by an assignee in bankruptcy to set aside certain conveyances of the bankrupt, and of others under his direction, upon the ground that they were made to defraud his creditors. It was commenced in one of the Courts of Tennessee. The facts upon which it is founded, briefly stated, are as follows: In August, 1878, Robert McKenna, a resident of that State, one of the defendants below, filed his petition in bankruptcy in the District Court for the Western District of Tennessee, and was, [508] in November, 1878, adjudged a bankrupt. In also in favor of the defendants, Metcalf and In May 1880, the assignee filed a bill in the United States for the district. Had he done [509] [511] in the state court no decision was made against bling a municipality to do that which is forbidden [No. 1442.] Submitted Jan. 4, 1889. Decided March 5, 1889. 5. The proceedings, resulting in the issue of the bonds whose validity is under consideration in this case, having been initiated May 11, 1870, five days The several cases to which our attention is after the Constitution went into effect, and the called, as being in supposed conflict with this election held on the 11th day of June following. view, have no bearing upon the questions in-issue the bonds, and their holders cannot recover. there was no authority to hold the election and to volved. In O'Brien v. Weld, 92 Û. S. 81 [23: 675], the question arose whether under the Bankrupt Act the District Court of the United States had authority to make the order inIN ERROR to the Circuit Court of the United volved, and the decision of the highest state States for the Western District of Tennescourt was against the authority; and that was see, to review a judgment for defendant, in a [512] held sufficient to sustain the federal jurisdic-suit upon municipal bonds. Affirmed. tion. In Factors Ins. Co. v. Murphy, 111 U. S. 738 [28: 582], the effect to be given to a sale of property under an order of the district court in bankruptcy was in question, the authority of the court to direct a sale free from incumbrances being denied. Jenkins v. International Bank of Chicago, 127 U. S. 484 [ante, 189], involved a question as to the authority of the assignee in bankruptcy to institute a suit touching any property or rights of property vested in him after the expiration of two years from the time when the cause of action accrued. See S. C. below, 36 Fed. Rep. 99. Statement by Mr. Chief Justice Fuller: Plaintiff in error brought suit in the Circuit Court of the United States for the Western District of Tennessee against the Board of Commissioners of the Taxing District of the City of Brownsville, Tennessee, and the president, treasurer, secretary and financial agent of that board, upon certain interest coupons annexed to bonds issued by the City of Brownsville, July 1, 1870. The cause was tried upon an agreed statement of facts, as follows: The City of Brownsville was incorporated by Act of the General Assembly of Tennessee passed on February 24, 1870. The records of the board of mayor and aldermen show the following proceedings had May 12, 1870: "BROWNSVILLE, TENNESSEE, May 12, 1870. "A call-meeting of the board of mayor and aldermen met at the mayor's office. Members being all present, the board was called to order. Reading the minutes of the last meeting was dispensed with. Upon application of J. D. Smith, President of Brownsville and Ohio Railroad Company, and in pursuance of authority in us vested by the Act of General Assembly of State of Tennessee passed February 8, A. D. 1870, the board of mayor and aldermen of the City of Brownsville hereby order and direct that an election be held in our said (See 8. C. Reporter's ed. 479-493.) at which election the qualified voters of our 1. The inhibition imposed by section 29 of the County, for twenty days before said election. 3. Provision in a new Constitution, providing for [480) The following is a correct copy of one of the said fifty thousand dollars of bonds, and the others are like unto it: section 6 of said Act of General Assembly of | Railroad Company in payment of a subscrip- 481] On the 13th day of June, 1870, the Sheriff of And on the said 13th day of June, 1870, the said Mayor and Aldermen of the City of Brownsville did ordain as follows: On motion, the following ordinance was adopted, to wit: Whereas, it appears from the certificate of Jno. L. Sherman, sheriff of Haywood County, that in pursuance of an ordinance of this board passed 12th of May, 1870, that he did, on the 11th day of June, 1870, open and hold an election within the City of of Brownsville upon the proposition to issue fifty thousand dollars corporation bonds running twenty years, bearing interest from date at eight per cent per annum, payable in the City of St. Louis, Missouri, said bonds to be known as the Brownsville railroad bonds, and to be issued in aid of the construction of the Brownsville and Ohio Railroad, and that at said election one hundred and thirty-nine votes were cast in favor of said bonds and Lone against, it is therefore ordained by the board of mayor and aldermen of the City of Browns ville that the mayor, T. W. Tyus, subscribe to the Brownsville and Ohio Railroad Company the sum of fifty thousand dollars as stock, and that in payment of said subscription he sign and issue to said Brownsville and Ohio Railroad Company fifty thousand dollars corporation bonds, said bonds bearing interest from date at the rate of eight per cent per annum, payable in the City of St. Louis, Missouri, twenty years from date, said interest to be paid annually, said bonds to be issued in aid of the construction of said Brownsville and Ohio Railroad, and to be known as the Brownsville railroad bonds." On the first day of July, 1870, fifty thousand dollars of the bonds of the City of Brownsville were issued under and in pursuance of the foregoing proceedings, payable July 1, 1890, and the same were by said City of Brownsville paid and delivered to the Brownsville and Ohio | 129 U. S. U. S., Book 32. $500. United States of America. $500. "Interest at eight per cent, payable annually. "In witness whereof the City of Brownsville "T. W. Trus, Mayor. G. W. Norton became the holder and owner for value before maturity, and without notice of any infirmity in said bonds other than that given him on the face of the bonds and by the Constitution and Laws of Tennessee, of the interest coupons which matured July 1, 1874, taken from said bonds numbered 5, 7, 27, and 41, and the interest coupons which matured on July 1, 1883, 1884, 1885, and 1886, taken from said bonds numbered 27, 35, 41, 44, 62, 82, 83, 84, 85, 86, 48, 49, 55, 57, 58, 60, 90, 91, 95, 96, 97, 98, 99 and 100, being four coupons which matured July 1, 1874, for $40 each, and 24 coupons which matured July 1, 1883, and 24 which matured July 1, 1884, and 24 which matured July 1, 1885, and 24 which matured July 1, 1886, aggregating 100 coupons of $40 each, and upon these 100 interest coupons the said G. W. Norton, on the 20th of May, 1887, instituted his said suit against the Board of Commissioners of the Taxing District in the City of Brownsville in said Circuit Court of the United States for the Western District of Tennessee, being No. 2933 on the law docket of said court, which is the cause recited in the caption hereof, to be submitted to said court upon the pleadings and this agreement of facts. The Mayor and Aldermen of the City of Brownsville at a meeting of said board, held [482] [483] |