Bailey Assignee v. Glover
APPEAL from the Circuit Court for the Southern District of Alabama.
Bailey, assignee in bankruptcy of Benjamin Glover, and appointed as such December 1st, 1869, filed a bill on the 20th of January, 1873 (three years and seven weeks, therefore, after the date of his appointment) against Elenora Glover, wife of the bankrupt, Hugh Weir, his father-in-law, and Nathaniel Glover, his son, to set aside certain conveyances.
The bill alleged that Glover, the bankrupt, owed Winston & Co. $13,580, and that judgment had been obtained against him for that debt; that Glover was a man of fortune-possessed of at least $50,000 in different kinds of property-and owed no debt but the one just mentioned; that being thus entirely solvent and able to pay that debt, but fraudulently intending to avoid its payment by applying for the benefit of and getting a discharge under the Bankrupt law, he previously to applying conveyed, without any or upon grossly inadequate considerations, all his estate to the defendants; and then with fraudulent intent filed a petition in voluntary bankruptcy, setting forth that he owed the debt to Winston & Co., that this was the only debt which he did owe, and that he had no property or effects whatever except such as the law exempted from execution.
The bill further alleged that on his petition as aforesaid he was, on the 11th of April, 1870, discharged under the Bankrupt Act; Winston & Co. proving their debt as creditors; and he, the complainant, being appointed assignee in the bankruptcy.
The bill further alleged that the bankrupt and his wife, son, and father-in-law-these being the already-named defendants in the case-kept secret their said fraudulent acts, and endeavored to conceal them from the knowledge both of the assignee and of the said Winston & Co., whereby both were prevented from obtaining any sufficient knowledge or information thereof until within the last two years, and that even up to the present time they had not been able to obtain full and particular information as to the fraudulent disposition made by the bankrupt of a large part of his property.
It also alleged that the surviving partner of Winston & Co., in December, 1871, filed a petition in the District Court against the bankrupt in order to have his discharge set aside for this fraud, but before process could be served on the bankrupt he died.
These were the material allegations of the bill, and if true they showed, of course, a very clear case of fraudulent conspiracy, between the bankrupt and his family connections, to defraud the only creditor named in his petition-a scheme of gross fraud, in short-concealed by the defendants from the knowledge of the assignee and from Winston & Co., against whom the fraud was perpetrated.
The defendants demurred to the bill, because the suit was not brought within two years from the appointment of the assignee, and their demurrer was sustained. This appeal was taken from the decree of the court dismissing the bill, and the sole question here was, whether on the case made by the bill this decision of the Circuit Court was right.
The second section of the Bankrupt Act of 1867, under which section the case arose, reads as follows:
'The Circuit Court shall have concurrent jurisdiction of all suits at law or in equity, brought by the assignee, against any person claiming an adverse interest; or by such person against the assignee touching the property of the bankrupt transferable to or vested in the assignee; but no suit at law or in equity shall in any case be maintainable by or against such assignee, or by or against any person claiming an adverse interest, touching the property or rights of property aforesaid, in any court whatsoever, unless the same shall be brought within two years from the time of the cause of action accrued for or against such assignee.'
Mr. P. Phillips, for the appellant:
The demurrer admits:
1st. That the defendants hold the property in fraud of the creditors.
2d. That they so concealed the fraud that the assignee only came to the knowledge of it within a year from filing the bill.
The question then is, whether the second section of the Bankrupt Act protects persons fraudulently obtaining property from the bankrupt, in the enjoyment of the fruits of their fraud, if they are able to conceal from the assignee the knowledge of their fraud for two years?
To answer such a proposition in the affirmative shocks one's moral sense, and if it is to prevail we must find in the words of the section instruction so explicit as to leave no room for construction. No such words exist there. We submit rather that the action does not accrue while the fraud is concealed. 
Independently of this, the second section does not apply to the present proceeding. It refers to suits brought by the assignee 'against any person claiming an adverse interest.' The present fraudulent possessors of the bankrupt's property never made known their interest. The assignee by their concealment had no knowledge of their claim. The evident intention of the section was to apply the limitation when an adverse interest was asserted. In such a case it was only reasonable that a statute of limitation should exist. To apply it to an interest concealed, and of which the assignee could have no knowledge, would be unreasonable.
Mr. S. J. Cumming, contra:
The right of the complainant to bring this suit accrued on his appointment, and under the second section of the act he could bring it only within two years from the time the cause of action accrued. This bill was not filed until more than two years after the cause of action accrued; in fact, not until more than two years after the final discharge of the bankrupt. The eighth section of the Bankrupt Act of 1841 is similar to the second section of the act of 1867, now under consideration. On that section numerous decisions which would go to sustain the demurrer have been made. 
The bill attempts to take the case out of the statute by alleging that the fraud was not discovered until within two years before the filing thereof. The answer to this is two-fold:
First. That the complainant does not, by the allegations of his bill, bring the case within the exception to the ordinary statute of limitations. 
Second. That the statute is imperative, admitting of no exceptions as to any tribunal, and consequently sets aside the rule invoked as to bankruptcy cases under the act.
Mr. Justice MILLER delivered the opinion of the court.
^1 Massachusetts Turnpike v. Field, 3 Massachusetts, 201; Homer v. Fish, 1 Pickering, 435; Welles v. Fish, 3 Id. 74; Sherwood v. Sutton, 5 Mason, 143.
^2 Comegys v. McCord, 11 Alabama, 932; Harris v. Collins, 13 Id. 388; Paulding v. Lee, 20 Id. 753; Clark v. Clark et al., 17 Howard, 315.
^3 Kane v. Bloodgood, 7 Johnson's Chancery, 122; Bank of the United States v. Daniel, 12 Peters, 56; Moore v. Greene et al., 19 Howard, 69; Harwood v. Railroad Co., 17 Wallace, 78.