Oakey v. Bennett et al.

As the case must come before that court for further proceedings, it may, in its discretion, on a proper application, relieve the plaintiffs from the embarrassments in which the justice of it seems to have been involved, on account of the unskilfulness of the pleader, by opening the judgment on the demurrer, and permitting them to amend the pleadings. It is apparent that judgment has been rendered against them, without at all involving the merits of the case.

The writ of error is dismissed, and the cause remanded to the court below.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the Northern District of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that this writ of error be, and the same is hereby, dismissed, and that this cause be, and the same is hereby, remanded to the said District Court, with directions to proceed therein in conformity to the opinion of this court.

SAMUEL W. OAKEY, PLAINTIFF IN ERROR, v. JOHN H. BENNETT, ADMINISTRATOR OF WILLIAM HALL, AND JOHN H. ILLIES.

A decree in bankruptcy passed, in 1843, by the District Court of the United States for the Eastern District of Louisiana, did not pass to the assignee the title to a house and lot in the city of Galveston and State of Texas, which house and lot were the property of the bankrupt.

Texas was then a foreign state, and whatever difference of opinion there may be with respect to the extra-territorial operation of a bankrupt law upon personal property, there is none as to its operation upon real estate. This court concurs

with Sir William Grant, in 14 Vesey, 537, that the validity of every disposition of real estate must depend upon the law of the country in which that estate is situated.

Besides, the deed made by the assignee in bankruptcy to one of the parties in the present cause was not made conformably with the laws of Texas; and letters of administration upon the estate of the bankrupt had been taken out in Texas before the fact of the bankruptcy was known there; and the creditors of the estate in Texas had a better lien upon the property than the assignee in Louisiana.

THIS cause was brought up, by writ of error, from the District Court of the United States for the District of Texas. It was an ejectment, conducted by way of petition and answer, for a house and lot in the county and city of Galveston, in the State of Texas, being lot No. 13 in block No. 681.

The suit was brought by Oakey against Bennett, the admin

Oakey v. Bennett et al.

istrator of William Hall, and John H. Illies, tenant in possession. In the bill of exceptions the suit is denominated an action of "trespass to try titles"; but as the petition prayed for the restoration of the property, as well as damages, it seems more proper to call it an ejectment.

Upon the trial, the plaintiff sought to derive his title from Hall, under whom the defendants claimed also.

In 1842, Hall was in possession of the lot by purchase from John S. Snydor, but no deed was at that time made.

On the 9th of February, 1843, Hall (calling himself William Hall, late of Galveston, Texas) filed a petition in the District Court of the United States for the Eastern District of Louisiana, praying for the benefit of the bankrupt act of the United States, passed August 19th, 1841. The legal notice was given, and on the 10th of March, 1843, he was declared a bankrupt, and F. B. Conrad, of New Orleans, appointed assignee.

On the 3d of April, 1843, Snydor executed a deed to Hall of the house and lot in Galveston.

In March, 1844, Hall died, and Bennett, the defendant, was appointed administrator by the Probate Court of Galveston County in Texas.

In May, 1845, Conrad, the assignee of Hall, petitioned the District Court for an order to sell the effects of the bankrupt, and, the usual preliminary proceedings being had, a public sale took place for cash. An article in the inventory was "all the right, title, and interest of the bankrupt in and to a house and lot in Galveston, Texas." Samuel W. Oakey became the purchaser of this for the price of four hundred dollars, and on the 18th of June, 1845, Conrad executed to Oakey a deed which conained the following recital, viz.:

"And the said William Hall, bankrupt, at the time he filed his petition in said court to be declared a bankrupt, and at the time, said 10th March, 1843, when he was declared and decreed a bankrupt, was possessed of a claim to a house and lots in the city of Galveston, of the exact nature of which the said Francis B. Conrad, assignee as aforesaid, could not obtain any exact knowledge or description; which claim, whether it was one or in plurality, on a house or houses, building or buildings, more or less in number, of lots, parcel, or parcels of land, be they what they were, situated in the city of Galveston, republic of Texas, by said act of Congress, and the decrees of said court on said bankrupt's petition, with all his property and rights of property, of every name and nature, and whether real, personal, or mixed, became, by the mere operation of said act thus made and provided, ipso facto from the time of such decree aforesaid, and was deemed to be, divested out of such bank

Oakey v. Bennett et al.

rupt, without any other act, assignment, or conveyance whatsoever, and the same became vested by force of the same in Francis B. Conrad, assignee as aforesaid. All of which rights of property or real estate, whatever might be the nature of his title thereto, or interest therein, which was situated in the city of Galveston, republic of Texas, it was my intention to sell, as assignee as aforesaid, at public auction; and the said court, on considering my petition to that effect, made judgment thereon, and issued an order of sale under date of 23d May, 1845; and by virtue of said order of sale by said court, and after due and lawful advertisement made by William F. Wagner, United States marshal for the district, and at the time and place designated in said advertisement, at the hour of 12, noon, on this 18th day of June, A. D. 1845, the said marshal did, under my direction, then and there publicly cry, adjudicate, and sell to Samuel W. Oakey, the last and highest bidder, as follows, viz. all the right, title, and interest of the said bankrupt (William Hall) in and to a house and lots in the city of Galveston, Texas, being lot 13, block 681, or lot 9, block 622, or both,' and sold without any guaranty whatever. The said

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Samuel W. Oakey became the purchaser for the price and sum of four hundred dollars, the receipt of which is hereby, as it already has been, acknowledged. În consideration thereof, I, the said Francis B. Conrad, assignee as aforesaid, have bargained, sold, conveyed, assigned, transferred, set over," &c., &c. This deed was afterwards recorded in Texas.

On the 12th of December, 1846, Bennett settled an account with the Probate Court, showing that he was in advance for the estate $1,811.03.

"On the 25th of January, 1847, Oakey filed a petition in the District Court of the United States fe" the District of Texas, which, after having been the subject of sundry pleas and demurrers and motions, was finally withdrawn, and an amended petition filed on the 31st of May, 1848. This was the subject of some motions too, but at length issue was joined, on the 5th of June, 1848, and the cause came on for trial. Being left to a jury, they found a verdict for the defendants.

The bill of exceptions sets forth all the deeds offered in evidence by the plaintiff, for the purpose of showing a title in Hall, and also the record of the proceedings in bankruptcy, to show that this title passed to himself. This part of the bill is not necessary to an understanding of the prayers addressed to the court, and it is therefore omitted. Nor is it necessary to insert the evidence, as offered by the defendant, to prove interlineations and falsifications of the record. The following are the prayers addressed to the court on the part of the plaintiff.

Oakey v. Bennett et al.

"The plaintiff requests the court to charge the jury,."1st. That if the jury find, from the evidence, that at the date of Hall's bankruptcy he was seized and possessed of the premises in question, and that, being so possessed, he, Hall, voluntarily applied to the honorable United States District Court of Louisiana to be declared a bankrupt, and was, in accordance with the act of Congress of the 19th of August, 1841, adjudged and decreed by the court to be a bankrupt, such voluntary petition and decree operated to divest and pass Hall's estate in the premises, and vested the property as absolutely in Hall's assignee as he, Hall, might have done by his own voluntary

conveyance.

"(Which instruction the court gave.)

"2d. That if the said assignee, Conrad, so appointed by said court, in execution of the order of said court sold said property to plaintiff for a valuable consideration, such bankruptcy, decree, order, sale, and purchase passed the right of property as effectually to plaintiff as Hall might have done by his voluntary deed of conveyance.

"(Which second instruction the court refused to give.)

"3d. That if Hall did petition, and at the time of his petition in bankruptcy surrendered the premises in question as part of his assets, although he only had possession thereof under a purchase by inchoate title, which was afterwards perfected by full grant, such subsequently acquired title enured to the benefit of plaintiff.

"(Which third instruction the court refused.)

"4th. That if the jury find from the evidence that Hall applied to the proper court, by his own voluntary petition, for the benefit of the act of Congress of the United States of the 19th of August, 1841, and obtained a decree of bankruptcy on said voluntary application, then all the property of said Hall, of every kind and nature whatever, real, personal, or mixed, was thereby divested out of said Hall, and vested as fully and effectually in his proper assignee, duly appointed, as the same was previously vested in Hall.

"(Which instruction the court gave.).

"5th. That the act of the United States Congress of the 19th of August, 1841, was recognized and adopted by the laws of Texas as part of the law of the republic of Texas.

(And this fifth instruction the court refused to give, saying, that the law of the republic of Texas referred to recognized the bankrupt's discharge, but did not affect his real estate, and here directs the clerk to insert the law referred to, which is an act of the republic of Texas, approved February, 1841, laws of that year, p. 143, entitled "An Act for the relief of

Oakey v. Bennett et al.

those who have taken the benefit of the insolvent laws of other countries."

"6th. That if Hall made a voluntary assignment in Louisiana of the premises in question, in order to obtain the benefit of the said act of the 19th of August, 1841, such assignment was, and is, in point of law, equivalent to a voluntary conveyance made by Hall of said premises to the plaintiff.

"(Which instruction the court refused.)

"7th. That the transcript of the record, marked A, from the United States District Court of Louisiana, is competent and conclusive evidence of what it purports to contain, and what is recited therein; and that under law said transcript of record is entitled to full faith and credit.

"8th. That Bennett is in no better condition in relation to the property in controversy than Hall himself would have been had he been living and the defendant in this suit.

"(This charge, the eighth, the court gave.)

"As to the seventh instruction asked, the court charged the jury that full faith and credit should be given to the transcript of the record of the court in Louisiana; that is, that it is entitled to the same force and efficacy here that it would be entitled to in the court where the transaction was had, and of which it purports to be the record; that in this court, as in that, parol testimony is competent to show that that which claims to be a record is void for forgery.

"9th. That if the jury believe from the evidence, that after Hall's act of bankruptcy he became a citizen of Texas, Oakey being and remaining a citizen of the United States until the annexation of Texas to the United States, then, by the act of annexation, the property in question became as absolutely Oakey's as though Texas had been one of the United States at the date of the bankruptcy, the act of annexation having, by relation, removed every disability growing out of the laws of the place where the land is situated, and of Oakey's personal right to hold.

"(Ninth refused by the court.)

"10th. That if the jury believe from the pleadings and evidence that Oakey has derived his title from or through Hall's voluntary act, either of record or by conveyance, and that the defendant. Bennett only claims as Hall's administrator, and Illies as his tenant, then Bennett is only the personal representative of Hall, and, as such, a proxy, and as fully and effectually estopped from denying Oakey's title as Hall himself would have been, and that Hall would have been absolutely estopped.