Gray v. Heslep

Bates, Judge, delivered the opinion of the court. The first point made is that the appellant has, by failing to file a motion for a new trial, waived all exceptions taken at the trial. This was the practice prior to the passage of the act of 1849, but that act introduced a different practice. (Fine v. Rogers, 15 Mo. 315; Wagner v. Jacoby, 26 Mo. 530; Prince v. Cole, 28 Mo. 486.) The act of 1855 does not change that of 1849 in any particular which would authorize us to return to the old practice. The action was ejectment, in which the plaintiff got judgment. The plaintiff claimed under one Clinton Heslep, and to show his title gave in evidence a deed from the assignee in bankruptcy of Clinton Pleslep to one McCorry. The defendant objected to the deed, which purported to have been made by William T. Haskell, “ general assignee in bankruptcy for the district of West Tennessee.” It contained no recital of the appointment of Haskell as assignee, either by a copy of the appointment or by a direct averment that he had been appointed. No other evidence was given of the appointment of Haskell as such assignee. The 15th section of the bankrupt law, (5 Statutes at Large, 448,) provides “ that a copy of any decree of bankruptcy and the appointment of assignees, as directed by the third section of this act, shall be recited in every deed of lands belonging to the bankrupt sold by and conveyed by any assignees under and by virtue of this act.” This deed, not containing such recital, and there being no other evidence of the appointment, is invalid. (Warren v. Hemstead, 33 Maine, 256.) The assignee’s right to convey [244] depended entirely upon the act of Congress which gave him the power, and he was bound to convey in the manner prescribed by the act, or else his conveyance was a nullity. There are other objections to the deed which appear to have been well taken, but they are not considered, because this is fatal. The deed should have been rejected. The rejection of that deed breaks the plaintiff’s claim of title, and shows him without any right of recovery. The sheriff’s deed is also fatally defective. Other questions made in the case are therefore not considered. Judgment reversed ; the other judges concur.*