Smith v. Hornesby ( 1877 )

Bleckley, Judge.

When, at the time of the adjudication in bankruptcy, the bankrupt is the owner of a bond for titles to land, with the purchase money partially paid, his assignee, as a general rule, succeeds to his interest in the bond and in the land. If the assignee, while in office, convey, in writing, to the maker of the bond, “ all the interest, right and title ” which the bankrupt had in and to the land, the bankrupt cannot, afterwards, maintain a bill, in the state court, for specific performance of the contract to convey according to the bond, or for compensation in damages for a breach of the condition. It will make no difference that the bill ■ alleges that the transaction between the assignee and the obligor was unlawful, fraudulent, and without consideration. Nor will it aid the complainant that he avers, in his bill, that he had alleged in a previous bill, filed for the same object, that he had withdrawn from bankruptcy, he not directly averring in the present bill that he had withdrawn, and not pleading or exhibiting any judgment of the court of bankruptcy permitting him to withdraw. And, moreover, it not appearing either that the land or the bond was assigned to the complainant as exempt in bankruptcy, or that his other assets were sufficient for the discharge of all his debts. Although the assignee, as well as the obligor in the bond, is a party defendant to the bill, the court below was right in sustaining the demurrer; as, on the facts alleged, the jurisdiction to call the assignee to account for mal-administration, is in the court of bankruptcy, if anywhere. Difficulties in the case on account of the lapse of time, etc., need not be considered, inasmuch as the judgment finally disposing of the bill, on demurrer for want of equity, is affirmed for the reason stated above.

Judgment affirmed.