Reid v. Robrecht
Synopsis
Bankruptcy— Sale of Property of Bankrupt—Invalid Deed.—Under the United States Bankrupt Act of July 22, 1874, all sales of the property of a bankrupt were required to be at public auction unless otherwise ordered by the court, after three weeks’ notice of the time and place of sale given in such paper as should be determined by the judge to he best calculated to give general notice of the sale; and a conveyance of real estate of the bankrupt by the assignee in bankruptcy without any order made by the judge directing a sale, and without any notice of sale, required by the bankrupt act, and without any recitals in the deed showing that the assignee had any authority to make the sale or conveyance, is void.
Id.—Sale Under Statutory Power—Conditions Precedent.—When a sale is made under a power given by the statute, all the requirements of such statute, so far as they are conditions precedent to the operation of the power to vest the estate, must appear to have been complied with.
Id.—Quieting Title—Possession of Land—Claim, of Ownership—Finding Against Evidence.—Where the plaintiff, in an action to quiet title, claims title under a void sale by the assignee of a bankrupt, and only proves a claim of ownership of the property, and a request, prior to the commencement of the action, to real estate agents to rent the property and collect the rents for him, without showing possession in the plaintiff, a finding of title and possession in the plaintiff is not sustained by the evidence.
The Court. Action to quiet title to certain property in San Francisco. The plaintiff had judgment, and the defendant appeals therefrom, and from an order denying a new trial.
[522]In 1874 one P. P. Cusick became the owner and invested with the legal title to the property in question. Prior to July 30,1878, Cusick and his wife filed a declaration of homestead upon said .property, and on July 30th he went into bankruptcy, and on August 12th was adjudged a bankrupt, and an assignee was appointed, to whom the register executed an assignment of the bankrupt’s effects on September 2, 1878. This assignment was not recorded in the recorder’s office of the city and county within six months, as required by the Bankrupt Act, nor until April 23, 1885, nor in the office of the clerk of the district court until April 22, 1885.
On the 6th of April, 1885, the assignee, in consideration of the sum of fifty dollars, conveyed the premises in question to the plaintiff, which conveyance was recorded April 23, 1885.
Defendant’s answer denied plaintiff’s ownership and possession, and alleged that in 1881 Cusick and wife executed a mortgage 1o him upon the same premises to secure their joint and several promissory note for five thousand one hundred dollars; that the mortgage was duly recorded the same day; that in March, 1885, he obtained a decree of foreclosure of said mortgage, and that at the sale of the premises under said decree he became the purchaser; and, no redemption having been made, in due time received a deed from the sheriff therefor, and that notice of the pendency of the action was duly recorded June 30, 1884, at the time the action was commenced.
Upon the trial the plaintiff put in evidence the title of Cusick and the proceedings in bankruptcy down to §nd including the assignment by the register to the assignee, and then offered in evidence the deed from the assignee to the plaintiff, to the admission of which defendant objected. It was not shown by recitals in the deed, or otherwise, that the assignee had any authority to make the sale or conveyance. The act of July 22, 1874 (U. S. Stats., p. 178, sec. 4), provided that all sales of the property of a bankrupt shall be at public [523]
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