Lacey v. Southern Min. L. Co.

MoOLELLAN, J. On November 16, 1867, James P. Lacey filed his petition to be adjudged a bankrupt, exhibiting therein schedules of his assets and liabilities. He was on December 7, 1867, adjudged a bankrupt. An assignee, N. B. Mardis, was duly appointed and qualified. Upon Lacey’s petition and after his final examination, he was discharged on December 7, 1871. On August 26, 1869, the assignee, as such, executed to French Nabors a deed to certain lands belonging to the bankrupt estate. This conveyance purports to have followed from a sale by the assignee in the course of the bankruptcy proceeding, and recites that Nabors was the highest and best bidder thereat. In this conveyance there are a number of recitals, among which are (a) that the property of the bankrupt was theretofore assigned by the register to the assignee; (b) and that an order of sale of the property had been made by the register. In addition the conveyance contains these words:' “Now, therefore, under and by virtue of the said order of sale and the power given to the said party of the first part (i. e., assignee), by law as'well as in consideration” of a sum stated, the receipt whereof is acknowledged. The docket entries and papers in the [60] bankruptcy proceedings are shown in this record. In these certified copies from those proceedings no express reference is made, either to a sale of the bankrupt estate, or to an assignment of the property thereof to the assignee. Aside from the recital in the conveyance that an assignment was made to the assignee and- the possible interference of approval by the court of the sale (purporting to have been made May 24, 1869) from the docket entry showing, as of August 20, 1869, that the register and assignee certify fees paid, $163, there is no direct evidence of an assignment to the assignee or an order of sale of the bankrupt estate. The original bill was filed April 7, 1910. The answer and cross-bill of the appellants was filed April 22, 1910. There was no proof of actual possession by any one since the institution of the bankruptcy proceedings in 1867. So the reliance to sustain the allegation in the original and cross bills, respectively, of possession of the property, must be the ascertainment of the repository of the legal title, which, under the familiar rule applicable where there is no actual possession opposed thereto, draws to itself constructive possession. It does not appear from the evidence that appellants or James P. Lacey ever asserted any. claim to the lands in question until about the time this litigation was commenced. It does appear that Mardis, the assignee, and James P. Lacey had been dead more than 15 years before June 28, 1910. Lacey, the owner of these lands, invoked the jurisdiction of the bankruptcy court in 1867. In orderly progress Mardis was duly constituted the assignee in that proceeding. An essential step in the administration of the trust for the benefit of the creditors of the debtor was an assignment by the judge or register of the property of the bankrupt to the assignee.—Conner v. Long, 104 U. S. 228, 230, 26 L. Ed. 723. In 1869 a sale [61] and conveyance reciting an assignment to the assignee by the register Avas had; the purchase price bid by the grantee therein being $163.10. On August 20, 1869, fees, in practically that sum, appear to have been paid by the register and assignee. If thé exemption of personal property claimed is excepted, there was no other source than the sale of May 24, 1869, from Avhich the sum so paid in fees could have been derived. December 7, 1871, the bankrupt Avas discharged. In his verified, by him, petition for final discharge, it is recited “that he has duly 'surrendered all his property and rights of property.” About 43 years have elapsed betAveen the adjudication of Lacey’s bankruptcy and the filing of the bills in this cause. Practically 39 years so intervened between his discharge and the institution of this cause. Under the circumstances stated, there should be no hesitancy in finding as of fact, and of presuming from the circumstances shoAvn that in the progress of the bankruptcy proceedings, eventuating in the bankrupt’s discharge, all necessary steps were taken to administer the trust, and to effectuate the purpose of the laAvs under Avhich Lacey voluntarily sought and secured his discharge from his scheduled liabilities. That the finding made and the presumption indulged conform to the truth is rendered practically certain by the fact that Lacey himself never subsequently asserted, or sought to assert, any right to these lands. To impute to Lacey any other relation to these lands than that the stated finding and presumption take as true Avould unwarrantably refute, in the interest of his heirs, Avho could occupy, in this particular respect, no higher right or relation to these lands than Lacey, his verified declaration upon AAdiich he sought and secured his discharge in bankruptcy. These proceedings, as shown by the papers therein, have passed, because of the elapsing of so many [62] years, into the category of the ancient. Of such matters it was said in Baucum v. George, 65 Ala. 259, 206: “When a record, or an office paper, is lost or destroyed, if its former existence is satisfactorily shown, secondary evidence of its contents will he received. Sometimes existence and contents may he presumed, if the record is ancient; but in all cases it is, like other documents, the subject of secondary evidence of the highest grade the party can produce.”. The assignee and the bankrupt, and probably all others immediately concerned in the bankruptcy proceedings, are dead. The papers therein were not recorded. It would seem difficult, if not impossible, to adduce a higher character of evidence of the fact of assignment and order of sale than the recitals found in the deed from the assignee to Nabors. It is insisted for appellants that the presumption of a grant of real estate, after the elapsing of a great period of time, has not been indulged except to support and confirm an actual possession. If that be accepted as the unvarying rule, our conclusion, as before expressed, does not conflict therewith. The finding upon fact and the presumption therefrom in respect of steps in a proceeding taking place in the remote past in a tribunal fully jurisdictioned to act and which did pronounce according to the ultimate object of the proceeding distinguished the matter at bar from a status to which appellants’ contention refers. The decree is therefore affirmed'. Affirmed. Dowdell, C. J., and Simpson, Anderson, and Somerville, JJ., concur. Sayre, J., dissents.