Oakey v. Bennett et al.

"11th. That, if the jury find for the plaintiff, they may find the rents as damages.

"(Which the court gave.)

"12th. That the act for the relief of persons who have taken the benefit of foreign insolvent laws of Texas, passed February, 1841, (before referred to,) recognizes a surrender under a foreign bankrupt law, if honestly made, as a valid and legal mode of transferring the bankrupt's real estate lying in Texas.

"(Which the court refused.)

"12th. That Oakey is vested with all the rights that were vested in Conrad by virtue of his due appointment as assignee of Hall.

"(And this twelfth instruction the court refused to give.)

"And to the failure and refusal of the court to give the instructions hereinbefore asked, and by the court refused as noted, and to the giving the said several instructions not asked, which by the court were given as hereinbefore set forth, the said plaintiff at the time excepted.

"And now, for the purpose of saving the said several exceptions taken, as well as to set forth the whole facts of the case, the court seals this bill of exceptions, and orders the same to be filed and made a part of the record, which is done 5th June, 1848. JOHN C. WATROUS, [L. S.] U. S. Judge."

The case came up to this court upon all these points.

It was argued by Mr. Hall, for the plaintiff in error, and Mr. Rogers and Mr. Howard, for the defendants in error, with whom were Mr. Ovid F. Johnson and Mr. Harris.

The points made in the arguments of counsel which are not touched upon in the opinion of the court are omitted in this report.

Mr. Hall, for plaintiff in error.

Third Point. There was error in the court below in refusing to charge that the plaintiff became vested with the rights of property, which had been vested in Conrad by Hall's bankruptcy. (Charge asked for in Nos. 2 and 12.)

1. The court had charged, that the decree which discharged Hall divested him of his property, and vested it in Conrad. And therein it was correct. General Bankrupt Law, § 3.

2. That the vested property in Conrad, when deeded to the plaintiff, passed Hall's rights, is a sequitur of the charge given. The assignee had power to deed. General Bankrupt Law, § 15.

3, The surrender and conveyance in Louisiana passed the

Oakey v. Bennett et al.

property in Texas. This while she was yet a republic. Proviso in Act, 5 Texas Laws, p. 44; Dallam's Digest, pp. 94, 95; Carr's Guardian v. Wellborn, Dallam's Digest, p. 624, and 1 Texas Reports, 463.*

4. This was not a compulsory, but a voluntary transfer. A bankrupt's property out of the jurisdiction of the tribunal passing it may not be transferred as against creditors of the locus rei site, when compulsory or scheduled in general terms; but if he voluntarily surrenders it, it passes. Selkrig v. Davies, 2 Rose, B. C. 291; Story, Conflict of Laws, § 38; Bank of Augusta v. Earle, 13 Pet. 519; 16 Pet. 57.

Fourth Point. Had Hall been defendant in this suit, he would have been estopped from resisting plaintiff; and there was error in the refusing so to charge by the court. He had voluntarily surrendered property. It had vested in an assignee. That assignee had deeded it to plaintiff. Hall and the plaintiff were privies in the successive relationship of the latter to the former as to the same rights of property. 1 Greenleaf on Evidence, § 189.

The effect of Hall's surrender was to vest his property in his assignee, and in whomever the assignee might sell to. He is presumed to have known this, for it was the effect of his own deed. Even if in law his surrender in Louisiana did not pass Texas property, he could not set it up. Nullus commodum capere potest de injuriâ suâ propriâ. And surely either Hall or his privy in representation cannot now deny the title of plaintiff, who, a bona fide purchaser, by reason of their own act, will else be prejudiced by their taking advantage of Hall's wrong (assuming that any existed).

Fifth Point. If Hall was thus estopped, Bennett, the defendant, was also estopped. (Error in charging to contrary.) That he was in the same condition in which Hall, if defendant, would have been, was charged by the court. And this was so. Bennett was Hall's administrator, and his privy in representation. 1 Greenleaf on Evidence, § 189. The admissions of an intestate bind his administrator. Smith v. Smith, 3 Bing. N. C. 29; Ivat v. Finch, 1 Taunt. 141.

The record of bankruptcy was in evidence, which would have bound Hall, and also Bennett, his administrator. 1 Greenleaf on Evidence, §§ 522, 523. There was no evidence to show that Bennett was holding for creditors. He was Hall's administrator in a personal capacity only.

Texas had recognized and applied the force of the common law of England, as her rule of jurisprudence, whenever not in conflict with her own laws. By the common law of England the title of foreign assignees was recognized. Sill v. Worswick, 1 Hen. Bl. 691.

Oakey v. Bennett et al.

Sixth Point. The title to the property in controversy (lot 13, block No. 681, city of Galveston) was in Hall when he was decreed bankrupt, the time at which his property vested in the assignee. General Bankrupt Law, § 3.

Hall bought from Snydor, in the autumn of 1842, by parol agreement; went into occupation, and made improvements. Snydor testifies, that he considered Hall owner all this time; "he would have made the deed at any time after the bargain and sale." The deed was made April 3d, 1843; discharge by decree, June 16th, 1843.

"In the case of a parol contract for the sale of lands, if afterwards carried into effect by a conveyance, the deed will relate back to the date of the contract," &c. 4 Kent's Com. 451, note, last edition; Clary v. Marshall, 5 B. Monroe, 266.

By the Texas statute of frauds, estate for less than five years could be made by parol. Dallam's Digest, 61.

There was part-performance of the parol sale;

1. By occupation. Wilber v. Paine, 1 Ham. Ohio, 251; Gregory v. Mitchell, 1 Hoff. 470.

2. By improvements. Parkhurst v. Van Cortlandt, 1 Johns. Ch. 274.

Part-performance of parol contract for lands saves the statute of frauds. 4 Kent's Com. 451.

There was error in the face of these matters of fact and law, in refusing to charge as asked for. (Charge 3.)

Seventh Point. If Hall had possessed any creditors in Texas at the time he surrendered his Texas property, (which does not appear so to be,) and who were thereby prejudiced, Hall could have pleaded his discharge in Louisiana against their demands.

- This by statute of Texas. It would be a legal mockery, in construing this statute, to say that, while it recognized the validity of a foreign discharge, it did not recognize the effect of that discharge. There was error in charging the latter. (Charge 12.)

Eighth Point. As against every person but the State, the assignee, although not a citizen of Texas, as well as plaintiff, could succeed to Hall's rights, and hold land.

Aliens may take by purchase, and hold land, until office found. Fairfax v. Hunter, 7 Cranch, 603.

This is so well established, said a distinguished justice of this court, that the reason is only a search for the antiquary. And until land is seized by the State, aliens may convey or maintain action. 13 Wend. 546.

Naturalization relates back, and confirms title to land purchased during alienage. Jackson v. Beach, 1 Johns. Cas. 399.

Oakey v. Bennett et al.

Texas, as a republic, having slept on her rights to escheat the land vested by Hall in his assignee, (conceding, argumenti gratia, such right to have existed,) when admitted as a State, the disability of the assignee was removed; and the annexation operated to confirm his title in the same manner as naturalization. There was error in refusing so to charge, as at charge 9.

The points made by the counsel for the defendant were the following:

1. This is an action of trespass to try title under the statutory regulation of Texas, which declares that the trial shall be regulated by the principles of ejectment. Hartley's Digest of Texas Laws, p. 969. It requires a legal title to sustain the action in this court.

2. The transfer of land by a foreign bankruptcy is not such a title. Whatever may be doubtful as to the effect of a foreign assignment in bankruptcy upon personal estate, it is universally admitted that it cannot convey real property, which is regulated by the law of the situs. Story, Conflict of Laws, §§ 422 a, 428, 591.

3. The record shows that Oakey was a citizen of Louisiana at the date of the sale to him. He was therefore an alien, and the tenth section of the general provisions of the constitution of the republic forbids aliens to hold land except by titles emanating from the government. Hartley's Dig. 38; Story, Confl. § 429. At common law a party may take by purchase, and hold until office found; but he cannot take by operation of law, or by descent, or by bankruptcy. As he cannot hold, the law will not cast the title upon him.

4. The act of the Texas Congress does not recognize conveyances by foreign bankrupt assignments. It is confined to the effect of the discharge. The discharge is one thing, the assignment another, and they are quite different in their effects. The Texas bankrupt law required a regular deed of assignment from the debtor. Hartley's Dig. 114, 115.

5. The bankrupt law of the United States of 1841 does not provide for an assignment. It requires the applicant to present a petition, with a list of his creditors and their places of residence, together with a schedule of his property, &c., and when declared a bankrupt, the third section provides that title to all his property, real and personal, shall be vested in assignees "by operation of law," without any other assignment or transfer. Such an act can have no extra-territorial force on real property, for the obvious reason, that there would be a defect of jurisdiction. The authority of the court could not extend to lands beyond the United States.

Oakey v. Bennett et al.

The title to lands must be passed according to the law of the situs. The pretended transfer of the assignee, Conrad, could not pass title to lands in Texas, because it was not a deed at common law, nor according to the provisions of the laws of Texas. It had neither a seal, nor the scroll recognized by the statutes of Texas. It had no subscribing witness, nor was it acknowledged before any judge or other officer, as required by the statutes of Texas. If the judgment of the court of bankruptcy could have had any extra-territorial force or authority to transfer real estate, the instrument of the commissioner Conrad cannot operate as a deed to pass the fee. Hartley's Dig. 128. Under any aspect of the case, it could not support ejectment. More especially when it was shown that there were Texas creditors at the time Hall was declared a bankrupt.

6. The registered copy of the conveyances was not competent evidence, because not legally admitted to record. The originals were not acknowledged and proved, as required by the Texas registry act, and were not, therefore, evidence under her judiciary act. Hartley, 839; Ib. 255.

7. The description in the transfer of the commissioner, of a "house and lot in Galveston," was not sufficient without the interlineation of the number and block, which was proved by the marshal to have been made after the sale, and in the handwriting of the vendee. This of itself was sufficient to avoid the deed unless explained, and the onus of the explanation was on the vendee.

The following authorities were cited in addition, to show that title to land in Texas did not pass to the assignee of a bankrupt under the laws of a foreign country :- Kirby, 313; 1 Har. & McHenry, 236; 2 Ib. 463; 2 Hayw. 24; 4 McCord, 519; 1 Rep. Con. Ct. 283; 6 Binney, 353; 6 Pick. 286; Bee, 244; 5 Cranch, 302; 12 Wheaton, 361; 3 Wendell, 538; 2 Kent's Com., 1st edition, 330; 20 Johnson, 254; 4 Wheaton, 213; 2 Story, 360 and 630; 1 Metcalf and Perkins's Dig. 400, pl. 123, 124; 1 U. States Dig. (Supplement), 270, pl. 93, 94.

Mr. Justice McLEAN delivered the opinion of the court. A writ of error to the District Court of the United States for Texas brings this case before us.

Under the forms of procedure in Texas, an action was commenced by petition, on the 25th of January, 1847, by the plaintiff, for the recovery of a house and lot in the city of Galveston, Texas, described in the plan of said city, number thirteen, in block six hundred and eighty-one. The plaintiff gave in