« AnteriorContinuar »
paid to a life insurance company in fraud of them, actly the sime as if the policies in 1871 bad been but that they could bave no claim upon the insur made without any reference whatever to the exance, even in such a case, beyond the amount of the isting policies of 1870, which the husband might premiums and the interest thereon. Under the have given up at any moment he liked, or torbankruptcy act of 1867, in Re McKinney (D. C.), feited, or done anything he liked with. There15 Fed. Rep. 535, it was held : “An assignee in fore there is notbing substantial arising from the bankruptcy has no insurable interest in the life of fact that the policies of 1871 were in excbange a bankrupt, at least after his discharge. Upon a for the policies of 1870. Mellish, L. J., in his policy on the life of the bankrupt, payable at his concurring opinion, used the following language: death to his executors, administrators, or assigos, 'I agree with ihe lord justice * * * that if the with an equal premium payable annually during surrender policy really was in substance worth the bankrupt's life, the only beneficial interest nothing, if it was a policy which an insolvent which passes to the assignee in bankruptcy is its man 'would naturally allow to drop, it is very surrender value or net reserve at the time of the difficult to see what object an insolvent trader, bankruptcy. Beyond that interest the policy, so knowing that he is going to become a bankrupt, far as respects any future insurance under it, has in keeping up a policy on his life, and paywould be a burden rather than å benefit, which ing the premiums, knowing that the money will the assigns are not authorized to continue, and go for the benefit of his creditors, or perhaps not the assignee takes the legal title to the policy for for their benefit, because, if the policy was such the purpose of making the surrender value or net as this was, which had only been effected for a reserve available to the estate.' In Holt v. single year, it does no benefit to the creditors. Everall, an Englisb case, decided by the court of Wbat a trustee in bankruptcy does, if such a appeal, under the British bankruptcy act of policy comes into his hands, is to see if he can 1869, reported in 34 Law T. (N. S.) 599, it ap get anything from the insurance office, and all apeared that in 1870 a trader effected policies of the creditors are deprived of is the surrender insurance on his own life. In the following year, value, of the policy; and if there is no surrender wisbing his wife might have the benefit of the value we may consider that the new policy efpolicies, under the married woman's act, he sur fected instead of it comes within the protection rendered them to the insurance company, and of the act [the married women's property act]." received in substitution therefor policies at the In Bank v. Loh, 104 Ga. 446, 31 S. E. Rep. 459, same premiums, payable on the same day, and 44 L. R. A. 372, this court held tbat the only inentitled to the same privileges, as the former, surable interest a creditor has in the life of bis and wbich provided that the sums assured should debtor is for the purpose of indemnifying himbe paid to the wife. Within two years from the self against the loss of his debt, and that such date of the substitute policies the husband liqui interest cannot exceed in amount that of the indated, dying before the discharge. The trustee debtedness to be secured. The purpose of the claimed the insurance. It was held that, as the bankruptcy act is to take the property owned policies of 1870 had no surrender value, the tran. by the bankrupt. when the petition is filed, and saction of the following year was not a settle apply it towards the payment of his then exment of property, under the baokruptcy act of isting debts, discharging him in due course 1869, and that the widow was entitled to the from any further liability; his after-acquired policy money. In speaking of the substitution of
property not being subject to such debts. This one policy for another, James, L. J., in his
being true, it is apparent that the creditors opinion said: "If it could be made out that this
represented by the trustee, whose debts cannot was a device to avoid the ninety-first section of
continue against the bankrupt, can have no inthe bankruptcy act of 1869, and that there was surable interest in bis life for tbe purpose of any actual property-anything which the court indemnifying themselves against loss. In view, could construe as of value-settled at that time, therefore, of the authorities cited and the lanthen probably the court would say: We cannot al guage of the act itself, it seems that a policy low a device to be resorted to for the purpose of of insurance on the life of a bankrupt, thougb making that thing appear to be not a settlement payable to his legal representatives, does not which was in truth a settlement. * * * In that vest in the trustee, as assets of the bankrupt's point of view, it is important to see whether there
estate, if the policy has no cash surrender
REAL ESTATE OPTIONS.
An option, sometimes termed "the refusal that that which was given up was not of the
of property,” is a contract by which the owner slightest value whatever, that there was notbing taken away from the creditors in point of sub
of property agrees with another person that stance, and that the transaction, as far as the
he shall have the right to buy his property, at creditors were concerned, was, in substance, ex a fixed price, within a time certain. The op
tion does not grant any interest in the land; It, however, the offer is accepted by the other neither is it a contract for its sale. The owner party in good faith, and such acceptance comsimply parts with his right to dispose of it for municated to the owner before it is witha limited period. It is a unilateral contract drawn, the owner is bound to make a conveyand binding only upon the property owner ance, and the want of a consideration for the who has signed it. The holder of the option option is no excuse, for the acceptance of the is under no obligations to purchase the land. offer to sell completes a contract of sale of Before a sale, or a contract of sale, can re the property. When the option is granted sult, the bolder of the option must exercise by an instrument under seal, it has been beld his privilege, notify the owner of bis election in a number of cases that, as the seal imports to purchase, and tender payment of the pur a consideration, the property owner cannot chase price and performance of all conditions contradict the writing and show by parol that precedent.?
in fact the option was given without considFormal Requisites. The option must be eration. This rule is denied in other cases. in writing and signed by the owner of the land In leases it is sometimes provided that the or bis authorized agent, the contract being lessee shall have the right to purchase the within the statute of frauds. It is not per se property for a fixed sum at the expiration, or fatal to the validity of an option that it is si during the term of, the lease.
In such cases lent as to the length of time during which it the lessee's covenant to pay rent is alone a shall run. If a consideration is present it sufficient consideration for the option. It is will remain open for a reasonable time." presumed that his agreement to pay rent is
Consideration.-An option, like all other not merely for the use of the premises, but is contracts, requires a consideration to support for the privilege of purchase as well, and a it. If no consideration is present, a writing special or additional consideration for the opalthough in the form of an option is not a tion need not be present. Every extension contract, but a mere offer to sell," which may of the time of an option (although the option be withdrawn by the owner at any time befure it has been accepted by the other party. 17, 24 Par. Rep. 695; Litz v. Goosling, 93 Ky. 185, 19 S.
W. R p. 527; Weaver v. Burr, 31 W. Va. 736, 8 $. E.
Rep. 743; Larmon v. Jordan, 56 III. 201; Gordon v. Dar 1 Ide v. Leiser, 10 Mont. 5, p. 11, 21 Am. St. Rep. 17, nell, 5 Colo. 302; Bradford v. Foster, 87 Teon. 4, 9 S. W. 24 Pac. Rep. 693; Gustin v. School District, 94 Mich. Rep. 195; Houghwout v. Boisaubin, 18 N. J. Eg. 315; 502, 34 Am. St. Rep. 361; Richardson v. Hardwick, Bean v. Burbank, 16 Me. 458, 33 Am. Dec. 681; John. 106 U. S. 252; Bostwick v. Hess, 80 III, 138; son v. Trippe, 33 Fed. Rep. 530; Burnet v. Bisco, 4 Mers v. Franklin Insurance Co., 68 Mo. 127. "A Johns. (N. Y.) 235; Mers v. Franklin Insurance Co., present conveyance of lands is an executed contract. 68 Mo. 127; Perkins v. Hadsell, 50 III. 216; Dickinson An agreement to sell is an executory contract. The v. Dodds, L. R. 2 Ch. Div. 463; Borst v. Simpson, 90 sale of an option is an executed contract. That is to Ala. 373, 7 Soutb. Rep. 811; Copner v. Renneker, 25 S. say, the lands are not sold. The contract is not ex Car. 514; Easton v. Millington, 105 Cal. 49, 38 Pac. ecuted as to them, but the option is as completely Rep. 509. sold and transferred in præsenti as a piece of personal 7 Guyer v. Warren, 175 Il. 328, 51 N. E. Rep. 580; property instantly delivered on payment of the Perkins v. Hadsell, 50 [II. 216, Claancbi v. Branstat. price.” Ide v. Leiser, 10 Mont. 5, pages 11 and 12. ter, 81 Cal. 249; Houghwout v. Boisaubin, 18 N. J. Eq.
2 Graybill v. Brugb, 89 Va. 895, 37 Am. Rep. 894, 17 315.; Ide v. Leiser, 10 Mont. 5, 24 Am. St. Rep. 17, 24 S. E. Rep. 558; Burnet v. Bisco, 4 Jobos. (N. Y.) 235; Pac. Rep. 695; Wall v. Ry. Co., 86 Wis. 48, 56 N. W. Faulkner v. Hebard, 26 Vt. 452; Litz v. Goosling, 93 Rep. 367; House v. Jackson, 24 Oreg. 89, 32 Pac. Rep. ky. 185, 19 S. W. Rep. 527; Weaver v. Burr, 31 W. Va. 1027; Boston & Maine R. R. Co. v. Bartlett, 3 Cush. 736, 8 S. E. Rep. 743; Potts v. Whitehead, 20 N. J. Eq. (Mass.) 224; Yerkes v. Ricbards, 153 Pa. St. 646, 34 55; Barrett v. McAllister, 33 W. Va. 738, 12 S. E. Rep. Am. St. Rep. 721, 26 Atl. Rep. 221; Goodpaster v. 1106.
Porter, 11 Iowa, 161 3 Coleman v. Applegarth, 68 Md. 21, 6 Am. $t. Rep. 8 Willard v. Tayloe, 8 Wall. (U. S.) 557; O'Brien v. 417, 11 Atl. Rep. 284,
Burland, 166 Mass. 481, 44 N. E. Rep. 602; Guyer v. 4 Kellow v. Jory, 141 Pa. St. 144, 21 Atl. Rep. 522; Warren, 176 Ill. 328, 51 N. E. Rep. 580; Hayes v. Hanly v. Watterson, 39 W. Va. 214, 19 S. E. Rep. 536; O'Brien, 149 Ill. 403, 37 N. E. Rep. 78; Faulkner v. Vassault v. Edwards, 43 Cal. 459; Larmon v. Jordan, Hebard, 26 Vt. 452; Weaver v. Burr, 31 W. Va. 736 56 III. 201.
(738), 8 S. E. Rep. 743. & Weaver v. Burr, 31 W. Va. 736, 8 S. E. Rep. 743; 9 Graybill v. Brugb, 89 Va. 895, 37 Am. Rep. 894, 17 Ide v. Leiser, 10 Mont. 5, 24 Am. St. Rep. 17, 24 Pac. S. E. Rep. 558; Gordon v. Darnell, 5 Colo. 302. Rep. 695; Gordon v. Darnell, 5 Colo. 302; Litz v. Goos 10 House v. Jackson, 24 Oreg. 89, 32 Pac. Rep. 1027; ling, 93 Ky. 135, 19 S. W. Rep. 527; Faulkner v. Hebard, Schroeder v. Gemeinder, 10 Nev. 356; Herman v. Bab. 26. Vt. 452; Burnet v. Bisco, 4 Johns. (N. Y.) 235. cock, 103 Ind. 461; Souffrain v. McDonald, 27 Ind. 269;
6 Boston & Maine R. R. Co. v. Bartlett, 8 Cush. DeRutte v. Muldrow, 16 Cal. 503; Hawralty v. War(Mass.) 224; Ide v. Leiser, 10 Mont. 5, 24 Am. St. Rep ren, 18 N. J. Eq. 124, 90 Am. Dec. 613; Hayes v.
was supported by a consideration) must have In order to be affected by a withdrawal of an a new consideration."
option, its bolder must have notice or knowlTime. -Time is of the essence of this class edge of the same. 19 It is not necessary that of contracts, and the prospective purchaser the notice of withdrawal be formal, or even must act strictly within the period limited, express. If the owner disposes of bis propand communicate bis acceptance to the owner erty to another person, and the holder of the before its expiration. Where an option is to option has knowledge of the same, it is an continue "until” a certain day, the accept effectual withdrawal of the option, although ance may be made on the last day.18 An op no express notie is given. tion expires on the date specified without any Remedies.-If a landowner refuses to comaction on the part of the owner of the land, plete the sale after the holder of the option and it is not necessary for him to give notice bas acted under it, and tendered payment of forfeiture to its holder.14 Unless specially and performance of his part of the contract, provided in the option, the sale of the land specific performance will be decreed.21 An need not be completed within the time limited. option may be assigned by its bolder, 22 and "Time is of the essence of the option, but not the assignee may compel the owner to specificas to its performance;" and if the purchaser ally perform the contract.23 Specific percommunicates his acceptance within the al formance will not be decreed against tbird lotted time, the parties are entitled to a rea persons who have become purcbasers, for sonable time thereafter in wbich to consum value, of the property in ignorance of the opmate the transaction. 15
tion.24 But all purchasers baving knowledge Withdrawal of Options.-If the option was of the option will take subject to it.25 given without consideration it is a mere offer, Options to Real Estate Brokers.—When an and may be recalled by the property owner owner of property places it in the hands of a at any time before acceptance, whether the real estate broker for sale, it has been held time has expired or not.16 But if accepted that he may give an option to the broker by the other party before it has been with
328, 51 N. E. Rep. 580; Hayes v. O'Brien, 149 Ill. 403 drawn, the owner is bound; the acceptance 37 N. E. Rep. 73; Estes v. Furlong, 59 III. 298; House supplying the consideration and curing what v. Jackson, 24 Oreg. 89, 32 Pac. Rep. 1027; Bradford v. before was a want of mutuality in the option."
Foster, 87 Tenn. 4, 9 S. W. Rep. 195; Linn v. McLean,
80 Ala. 360; Ross v. Parks, 93 Ala. 153, 30 Am St. Rep. When supported by a consideration the offer 47; Gordon v. Darnell, 5 Colo. 802; Souffrain v. Mc. contained in the option cannot be withdrawn Donald, 27 Ind. 269; Litz v. Goosling, 93 Ky. 185, 19 S., or revoked until the full time has expired.18
W. Rep. 527; DeRutte v. Muldrow, 16 Cal. 605.
19 Dickinson v. Dodds, L. R. 2 Cb. Div. 463; Weaver
v. Burr, 31 W. Va. 736, 8 S. E. Rep. 743. O'Brien, 149 Ill. 403, 37 N. E. Rep. 73; Hall y. Center,
20 Coleman v. Applegarth, 68 Md. 21, 6 Am. St. Rep. 40 Cal. 63.
417, 11 Atl. Rep. 281; Larmon v. Jordau, 56 1II. 201; 11 Coleman v. Applegarth, 68 Md. 21, 6. Am. St. Rep.
Dickinson v. Dodds, L. R. 2 Ch. Div. 463. 417, 11 Atl. Rep. 284; Ide v. Leiser, 10 Mont. 5, 24 Am.
21 Ross v. Parks, 93 Ala. 153, 30 Am. St. Rep. 47; St. Rep. 17, 24 Pac. Rep. 695.
Guyer y. Warren, 175 Ill. 328, 51 N. E. Rep. 580; 12 Weaver v. Burr, 31 W. Va. 736, 759, 8 S. E. Rep.
Hayes v. O'Brien, 149 III. 403, 37 N. E. Rep. 73; Her743; Barrett v. McAllister, 33 W. Va. 738, 12 S. E. Rep. man v. Babcock, 103 Ind. 461; Boston & Maine R. R. 1106; Potts v. Whitehead, 20 N. J. Eq. 55, 59; Stem Co. v. Bartlett, 3 Cush. (Mass.) 221; Ide v. Leiser, 10 bridge v. Stembridge, 87 Ky. 91, 7 S. W. Rep. 611; Mont. 5, 24 Am. St. Rep. 17, 24 Pac. Rep. 695; Longworth v. Mitchell, 26 Obio St. 334; Vassault v. Schroeder v. Gemeinder, 10 Nev. 355; Hough wout v. Edwards, 43 Cal. 458; Smith & Fleek's Appeal, 69 Pa. Boisaubin, 18 N. J. Eq. 315; Smith & Fleck's Appeal, St. 474; Coleman v. Applegarth, 68 Md. 21, 6 Am. St. 69 Pa. St. 474; Bradford v. Foster, 87 Tepn. 4, 9 S. W. Rep. 417, 11 Atl. Rep. 281; Borst v. Simpson, 90 Ala. Rep. 195; Donnally v. Parker, 5 W. Va. 301; Willard 374, 7 South. Rep. 814; Bostwick v. Hess, 80 III. 138; v. Tayloe, 8 Wall. (U. S.) 557; Brown v. Slee, 103 U. Steele v. Bond, 32 Minn. 14; Richardson v. Hardwick, S. 828; Watts v. Kellar, 56 Fed. Rep. 1; Jobnson v. 106 U. S. 252; Dyer v. Duffy, 39 W. Va. 148, 19 S. E. Trippe, 33 Fed. Rep. 530; Waterman v. Waterman, 27 Rep. 540, 24 L. R. A. 339.
Fed. Rep. 827; Dickinson v. Dodds, L. R. 2 Ch. Div. 13 Houghwout v. Boisaubin, 18 N. J. Eq. 315.
461. 14 Cummings v. Town of Lake Realty Co., 86 Wis. 22 House v. Jackson, 24 Oreg. 89, 32 Pac. Rep. 1027; 382, 67 N. W. Rep. 43; Bostwick v. Hess, 80 III. 138. Perkins y, Hadsell, 50 III. 216.
15 Smith & Fleek's Appeal, 69 Pa. St. 474. Contra: 23 Souffrain v. McDonald, 27 Ind. 269; House v. Killougb v. Lee, 2 Tex. Civ. App. 260.
Jackson, 24 Oreg. 89, 32 Pac. Rep. 1027. 16 Larmon v. Jordan, 56 Ill. 204. See notes 5 and 6. 24 Graybill v. Brugb, 89 Va. 895, 37 Am. St. Rep. 894, 17 See note 7.
17 S. E. Rep. 558. 18 Schroeder v. Gemeinder, 10 Nev. 355; Hawralty v. 25 Ross v. Parks, 93 Ala. 163, 30 Am. St. Rep. 47; Warren, 18 N. J. Eq. 124, 90 Am. Dec. 618; Jobnson v. Barrett v. McAllister, 33 W. Va. 788, 12 S. E. Rep. Trippe, 33 Fed. Rep. 630; Guyer v. Warren, 175 III. 1106; Houghwout v. Murphy, 29 N. J. Eq. 531.
which will be binding.28 Speaking, generally, bankruptcy to set aside fraudulent transfers of
money or property made by the bankrupt to tbird the employment of a broker to sell real estate
parties before the institution of the proceedings in constitutes a contract of agency, while an op bankruptcy. tion is a conditional agreement to make a
Appeal from the District Court of the United contract, which, if made, creates the relation
States for the Northern District of Cowa. of vendor and purchaser between the parties. Mr. Justice Gray delivered the opinion of tbe An option contract thus differs materially court. This was a bill in equity, filed April 28, from a contract of agency. Options given to
1899, in the District Court of the United States for
the Northern District of Iowa, sitting in bankbrokers are upheld upon the theory that they
ruptcy, by Fred Bardes, a citizen of Iowa, as constitute a protection to the broker, and
trustee in bankruptcy of the estate of Frank T. that an agreement on the part of the broker
Walker (who had by that court been adjudged a to use his best endeavors and skill to effect & hankrupt upon bis own petition), against the sale of the property, followed by the actual
First National Bank of Hawarden, Iowa, a corperformance of services, or the expenditure poration created and existing under the acts of
congress relating to national banks, and against of money in advertising, etc., in endeavoring
citizens of Iowa and of South Dakota, to set aside to sell the same, is a sufficient consideration
a conveyance of goods, of the value of $3,500, alfor the principal's parting with bis right of leged to have been made by the bankrupt, within disposition for a limited period.27 But where four months before the institution of the proan option is given to the broker merely for
ceedings in bankruptcy, to the defendants, and to
compel them to account for the goods or their the purpose of convenience, or to facilitate
proceeds, on the ground that the conveyance was the sale, the broker cannot himself become
in fraud of the provisions of the Bankrupt Act of the purchaser and enforce the option against July 1, 1898, and in fraud of the creditors of the his principal, 28 and it may be revoked at any bankrupt. The defendants demurred to the bill, time by the principal.29
upon the ground that the court could not take Cleveland, Ohio. HOWARD A. Couse.
jurisdiction of the case. The court sustained the demurrer, and entered a final decree dismissing
the bill for want of jurisdiction, but without 26 Kellow v. Jory, 141 Pa. St. 144. 21 Atl. Rep. 522; prejudice to the plaintiff's right to institute proRiemer v. Rice, 88 Wis. 16, 59 N. W. Rep. 450; Russell ceedings in a court having jurisdiction. The V. Andrae, 79 Wis. 108, 48 N. W. Rep. 117; Levy v. plaintiff took an appeal directly to this court; and Roth, 39 N. Y. Suppl. 1057, 17 Misc. Rep. (N. Y.) 40;
the district judge certified that the bill was disHuckabee v. Sbepherd, 75 Ala. 342; Strange v. Gosse,
missed for want of jurisdiction only, and, to the 110 Mich. 153, 67 N. W. Rep. 1108; Coppov. Longstreet,
end that this court might be fully advised in the 5Colo. App. 282, 38 Pac. Rep. 601. 27 Stensgaard v. Smith, 43 Minn. 11, 19 Am. St. Rep.
premises, stated in his certificate the following 205; Goward v. Waters, 98 Mass. 596; Chambers v.
questions as baving arisen before him, namely: Seay, 73 Ala. 372; Attix v. Pelan, 5 Iowa, 336; Riemer "Ist. Do the provisions of the second clause of v. Rice, S8 Wis. 16, 59 N. W. Rep. 450.
section 23 of the act of congress, known as the 25 Colbert v. Shepberd, 89 Va. 401, 16 S. E. Rep. 246. Bankrupt Act of 1898, control and limit the juris29 Easton v. Millington, 105 Cal. 49, 38 Pac. Rep. 509. diction of all courts, including the several district
courts of the United States, over suits brought by trustees in bankruptcy to recover or collect debts
due from third parties, or to set aside transfers of JURISDICTION OF UNITED STATES DISTRICT property to third parties, alleged to be fraudulent COURTS IN SUITS BY TRUSTEES IN BANK.
as against creditors, including payments in money RUPTCY.
or property to preferred creditors?
“2d. Can the District Court of the United States FRED BARDES v. THE FIRST NATIONAL under any circumstances entertain jurisdiction BANK OF HAWARDEN, IOWA.
over suits brought by trustees in bankruptcy to
set aside fraudulent transfers of money or propUnited States Supreme Court, May 28, 1900.
erty, made by the bankrupt to third parties before
the institution of the proceedings in bankruptcy? The provisions of section 23b of the Bankruptcy Act
“3d. Can this court, being the District Court for of 1898 control and limit the jurisdiction of all courts,
the Northern District of Iowa, take jurisdiction including the several district courts of the United States, over suits brought by trustees in bankruptcy
over the suit as it now stands on the record ?" to recover or collect debts due from third parties, or
The record clearly shows, with perbaps unnecto set aside transfers of property to third parties, al essary fullness, that the case was decided upon leged to be fraudulent as against creditors, including questions of jurisdiction only, and wbat those payments in money or property to preferred creditore. questions were. Huntington v. Laidley, 176 U. The District Court of the United States can, by the S. 668, 676, and cases there cited. proposed defendants' consent, but not otherwise, en.
At a former day of this term, a certificate made tertaio jurisdiction over suits brought by trustees in
by the district judge of the same questions, on considering the language of each and their relawbich he desired ihe instruction of this court for tion to one another, may be best approached by his guidance, was dismissed by this court, because first referring to the terms and to the judicial he was not auiborized by the acts of congress to construction of the Bankrupt Act of March 2, make such a certificate before deciding tbe case. 1867, ch. 176, which was substantially re-enacted Bardes v. Hawarden Bank, 175 U. S. 526, 3 Am. in the Revised Statutes, and afterwards repealed; B. R. 680.
and by them comparing the provisions of that act, By the Bankrupt Act of July 1, 1898, ch. 541, as so construed, with those of tbe existing act. trustees in bankruptcy, appointed by the credit In the Act of 1867, the provisions as to the jurisors of the bankrupt, or by the court of bankruptcy, diction of proceedings in bankruptcy, and as to take the place and are vested with the powers of the original jurisdiction of actions at law and suits assignees in bankruptcy under former bankrupt in equity, were as follows: acts. Among the duties imposed npon such
(Here the court sets out in full, sections 1 and 2 trustees by section 47 are to "(2) collect and re.
of tbe Bankruptcy Act of 1867. The following duce to money the property of the estates for clauses are of importance: In section 1: "And which ihey are trustees, under the direction of the jurisdiction hereby conferred shall extend to the court," By section 70, ihe trustees, upon
all cases and controversies arising between the their appointment and qualification, are vested by
bankrupt and any creditor or creditors wbo shall
claim any debtor demand under the bankruptcy." operation of law with the title of the bankrupt as
In section 2: *Said circuit courts sball also have of the date when he was adjudged a bankrupt, in concurrent jurisdiction with the district courts of all his property, excepting that exempt by law the same district of all suits at law or in equity, from execution and liability for debts, and includ
which may or shall be brought by the assignee in ing property transferred by him in fraud of bis
bankruptcy against any person claiming an adcreditors. And by the fifth clause of section 67,
verse interest, or by such person against such as
signee, touching any property or rights of propall conveyances, transfers, assignments or in eriy of said bankrupt transferable to or vested in cumbrances of his property, or any part thereof,
such assignee."] made or given by a person adjudged a bankrupt In Lathrop v. Drake (1875), 91 U.S. 516, the under the provisions of this act, subsequent to the jurisdiction conferred on the district courts and passage of this act, and within four months prior the circuit courts of the United States by the to the filing of the petition, with the intent and Bankrupt Act of 1867 was defined by this court, purpose on his part to hinder, delay or defraud speaking by Mi. Justice Bradley, as consisting of bis creditors or any of them, shall be null and “two distinct classes: first, jurisdiction, as a void as against the creditors of such debtor, ex court of bankruptcy, over the proceedings in cept as to purchasers in good faith and for a pres bankruptcy, initiated by the petition, and ending ent fair consideration; and all property of the in the distribution of assets amongst the creditors, debtor conveyed, transferred, assigned or incum. and the discharge or a refusal of a discharge of bered as aforesaid sball, if he be adjudged a bank the bankrupt; secondly, jurisdiction, as an ordirupt, and the same is not exempt from execution nary court, of suits at law or in equity, brought and liability for debts by the law of his domicile, by or against the assignee in reference to alleged be and remain a part of the assets and estate of property of the bankrupt, or to claims alleged to the bankrupt, and shall pass to his said trustee, be due from or to bim," and the jurisdiction of whose duty it sball be to recover and reclaim the the district and circuit courts over suits to resame, by legal proceedings or otherwise, for the
cover assets of the bankrupt from a stranger to benefit of the creditors." 30 Stat. 537, 564, 565. the proceedings in bankruptcy, brought by the
The present appeal from the final decree of the assignee in a district other than that in which the district court, dismissing the bill for want of ju decree in bankruptcy had been made, was upheld, risdiction, distinctly presents for the decision of not under the provisions of section 1 of that act, tbis court the question whether, under the Act of giving to the district court original jurisdiction of 1898, a district court of the United States in, proceedings in bankruptcy, and of section 2. givwhich proceedings in bankruptcy have been ing to the circuit court supervisory jurisdiction commenced and are pending under the act, bas over such proceedings; but wholly ui der the jurisdiction to entertain a suit by the trustee in distinct clause of section 2, which gave to those bankruptcy against a person holding, and claim. two courts concurrent jurisdiction of all suits, at ing as his own, property alleged to bave been con law or in equity, brought "by the assignee in veyed to him by the bankrupt in fraud of credit bankruptcy against any person claiming an adors. This is a question of general importance, verse interest, or by such person against such asupon wbich there bas been much difference of signee, touching any property or rights of propopinion in the lower courts of the United States. erty of said bankrupt transferable to or vested in
Its determination depends mainly on the true such assignee." construction of two sections of the Bankrupt Act In an earlier case, it had been observed by Mr. of 1898, which it may be convenient to set forth Justice Clifford, delivering a judgment of this in full, as follows: [Here the court sets out in court dismissing an appeal from a decree of the full sections 2 and 23 of the Bankrupt Act of 1898.] circuit court in the exercise of its super visory
The question of the effect of these two sections, jurisdiction in bankruptcy, that the jurisdiction