Powell v. Knox , 16 Ala. 364 ( 1849 )

CHILTON, J.

It is very clear that the certificate of discharge in bankruptcy, when fairly obtained, operates a complete discharge to the bankrupt of all his debts which were proveable under the act, reserving however to the judgment or execution creditor such liens as had attached before the decree in bankruptcy was rendered. McDougald v. Reid & Talbot, 5 Ala. Rep. 810; Doremus, Suydams & Co. v. Walker, 8 ib. 194, 202. The lien, it is said in the case last cited, is preserved according to the rights of the creditor at the time the bankruptcy is established. In the case before us, the debtor had but an equitable title in the land, and it is well settled that such title cannot be sold under execution at law, but the statute in express terms declares that it shall be made liable by suit in chancery, and not otherwise. See Clay’s Dig. 350, § 31 — 216, § 76. In Willis v. Elmore, 13 Ala. Rep. 360, it was held that a purchaser of land, who had made full payment, holding only a bond for title, had no such interest as could be sold under execution at law, and that one who purchased at the sheriff’s sale acquired no title by the deed from that officer.

It seems necessarily to follow that as the interest is not subject at law to the judgment, no legal lien is created by the judgment upon it; for the lien results from the right which the judgment creditor has to have the land extended under the writ of elegü, and as the statute divests him of the right, the lien which is incidental to it must fail also.

The fact that the land was inserted in the schedule does not aid the plaintiff in error. It was the duty of the bankrupt to insert it, and if his title was equitable merely, the title which he possessed, as well as the personal property owned by him, immediately upon the decree in bankruptcy, became vested in his assignee; for the assignee succeeds to all the rights of the bankrupt, whether they be legal or equitable. Reavis v. Garner et al., 12 Ala. Rep. 661. It follows, therefore, that the cpurt did not err in granting the motion to quash the execution, upon the ground of the supposed lien upon the real estate.

Neither was there any error in rejecting the copy of the deed from Charles Spann, sen. to John R. and Charles Spann, in trust for the wife of John Knox, remainder to her children, of whom the bankrupt was one. In legal contemplation, upon the death of a trustee, the title-deed evidencing his trust devolves upon his personal representative, along with the trust. It was recently held by this court, that upon the death of a trustee pending a suit instituted by him as such, the suit must be revived in the name of the executor of the trustee. See Mauldin, Montague & Co. v. Armistead, ex’r., 14 Ala. Rep. 702. As then the defendant in error was not the custodian of the deed, and it is not shown that he ever had it in his possession, a notice to his counsel was not sufficient without further efforts to account for the original to let in secondary evidence. It may further be observed, that had the plaintiff in error laid a sufficient predicate for parol proof of the contents of the deed, it is a clear proposition of law that a certified copy of the deed from what purports to be a copy upon the records of court in South Carolina, is not sufficient to authorise it to be read in evidence, in the absence of all proof that such instruments are authorised by the laws of the State of South Carolina to be recorded. Until then, the act of Congress prescribing the mode for certifying records from one State to another does not apply — non constant, there may be no warrant in that State for admitting it to record.

The questions raised upon the legal effect of the proof of possession of the slave William, as presented in the charge which was asked and refused, aud in the charge given, as also with regard to the exclusion of the proof of possession by the defendant in error of the several slaves mentioned in the copy of the deed which we have noticed above as excluded from the jury, may be considered together and briefly disposed of.

In Hargrove v. Cloud, 8 Ala. Rep. 173, which is afterwards renewed in Petty v. J. B. & D. Walker, 379-383, it was said, the possession of property by a bankrupt, at the time of his discharge, or immediately after, which by industry he might reasonably have acquired, will not warrant the presumption that he did not make a full surrender of his estate. But when the amount of it is so great as to make it improbable that it was earned by him since the filing of his petition, it devolves on him to show how he became the proprietor of such property, whether by inheritance, bequest or purchase, and the emus of relieving himself from the imputation of fraud, in such ease, is cast upon him who is best acquainted with the origin and nature of his title. It is said in the subsequent case above alluded to, that it was inferable from the record in Hargrove v. Cloud, that the bankrupt was in the possession of slaves after filing his petition, and the charge was, that possession immediately after the decree was a circumstance to .create the presumption of fraud, unless explained by other evidence; and thus understood, this court expressed its satisfaction with the previous decision, but said, “ it was a misapprehension to apply what was there said to cases where the possession was not immediate after the decree, or rather after the application; for neither the jury nor court can be supposed to know the means within the power of an individual to acquire by his industry or business the ownership of property. The rule is there laid down, that to cast on the bankrupt the onus of explaining how he acquired the property, and to raise a presumption of fraud, the possession must be refered to the time of the application, or to a time so recently thereafter, that no business or industry could reasonably have created a fund adequate to the acquisition of the property. In all other cases, it is said, it rests with the plaintiff to create the presumption of fraud, by showing that the business or industry of the defendant could not reasonably have furnished him the property which he held as owner.

Applying the principle settled by the previous decisions of this court to this case, we think it very clear that the County Court did not err in excluding the evidence of the possession by the defendant in error of certain slaves, at the time of trial, which was more than six years from the time he filed his petition in bankruptcy. The evidence excluded in the case of Petty v. Walker, supra, was that a witness had heard the bankrupt say frequently, during the years 1844-5 and ’46, that he was interested as part owner ir. several steamboats: Held, that the exclusion of the proof was not erroneous.

It is said that fraud is never to be presumed where all the facts and circumstances in proof may consist with purity of intention. Steele v. Kinkle & Lehr, 8 Ala. Rep. 352. The first charge asked of the court below conflicts with this principle ; for it assumes that if the bankrupt had land before his bankruptcy, (the proof not showing how long before the filing of his application he was the owner,) it devolves on him to show that he was not the owner at the time of his application, if he failed to render it in his schedule. The second charge asserts that if the bankrupt, who filed his petition in February 1842, was in possession of a negro man in the years 1835-6 and ’37, and was then the owner, and afterwards, in the year 1846, the same boy was in his possession and his property, and was not rendered in his schedule of effects, and no evidence was offered by Knox to show a change of possession, it was prima facie evidence that it was all the time the property of Knox, and cast upon him the duty of showing why he was omitied in his schedule of effects. The presumption of law is, that things are properly and legally in their existing state, and hence one in possession of property is presumed to be the rightful owner. 2 Phil. Ev. (C. & H. Notes,) n. 298, p. 925, § 6. So also, the law presumes that a fact continuous in its character, when once shown to exist, still continues to exist, until a 'change is shown to have taken place. The law presumes the continuance of a legal or actual possession’ — Ib.; Bayard’s Lessee v. Colefax, 4 Was. Cir. Ct. Rep. 38; that a partnership continues; that a corporation continues to exist — 4 Wend. 423; ib. 672; 9 ib. 351; or that an entry and an ouster by a landlord upon bis tenant continues, till a restoration be shown. Applying these principles to the case at bar, we are of the opinion that although the possession or ownership several years anterior to the application for the discharge in bankruptcy of property, whether real or personal, is not sufficient to create the presumption of ownership at the time of the application, requiring the party to explain how he had disposed of said property, yet when the previous possession and ownership is coupled with the subsequent possession, and no proof is introduced to explain the condition of the property in the meantime, the law does raise the presumption that the party who has the property in possession as owner at these two periods owned it in the interim. Unconnected with the possession subsequent to the application, the previous possession in 1834-5 and ’36 was perhaps too remote to furnish a reasonable presumption of ownership at the time of rendering his schedule by the bankrupt, so as to cast upon the defendant the duty of showing how he had disposed of it. It would often be most difficult, and sometimes utterly impracticable, for a party to show and account for all the property he was possessed of years previously, and to impose upon the bankrupt this duty would be most onerous. But tv here he is shown to have been possessed of property and controlling it as owner, a few years before his application, and has the same property under his control after his discharge, there being no circumstances shown from which it may be inferred that he disposed of the property before his application and re-acquired it after that period, we think the legal presumption is adverse to the bankrupt, and that it is not only reasonable, but a duty he owes to himself, to explain the condition of the property at the time of his application. Unexplained, the prima facie presumption is that he had possession, and was the owner continuously from his first ownership to thé time he is last seen in possession of the slave.

The charge of the court is opposed to this view, and the judgment is consequently reversed, and the cause remanded.