-HABVEY 'V.' GAGE. :
iHsto bJ'assumed the department would have at all times on hand; or he option,pnrchase in advance of his present needs, an, ticipatingthe futu're exigencies of his business, and rely upon obtaining a. repaymeritof the amount paid ·for those not used, under the provisions (jf section 8426, Rev. St. U. S. In this view the regulation of the commissioner of internal revenue, under whieh this bond was given, was a just and wise one. It was calculated to indemnify the government against the riskof loss which those whodesited themselves of exceptional facilities in their busineSs with thec1epartment could bot expect the government 'to assume. The bond wasgiven'>to obtain an accommodation which the commissioner 'of internal revenue might properly extend, but which he was not required by law' to give. The'judgment of the. district court is affirmed.
(Oirc'UitOo'l.lrt, ;N. D. lllinO'li. June 20, 1887.)
5057; RElv. ST. " " SecUQn5057. Rev. St., provides that no suit, either at lawor in equity, shall bemalntainablil between an assignee in bankruptcy and'a' person claiming an b1terest touching .any property transferable to or "]lllted in saidallfrolll the time when such signee, ,unless such 8uitbe brought within two, cause of action accrued for or against such assignee. 1fe'ld.. where the dE!tend,anto;btained two tax deeds made and'toecorded in 1877 and 1880, to prophaq be<;ome seiz.ed In , erty of which the plaintiff as an assignee in' that a suit to Bet aside. said deeds, commenced by the plaintiff Rssuch asaigneeinlB86, was not maintainable. it not having been brought within two . , years from the time the cause ,of action accrued.
George,A. DrJ;Puy, for complainant. 'Gage, for defendant.
BLODGETT, J. The bill in this case charges that complainant was, on .the 1st day of December, 1873, by an order ofthis court sitting as a court of bankrup'tcy, duly appointed assignee of the Frlinklin Bank, a corporation organized and doing business in the state. Qf Illinois, and under the laws of'this state, which had been before that time duly adjudged bankrupt irithis court; that he duly qualified as such assignee, and has since beeri discharging the duties of said office; that, by virtue of his saidofficelils assignee, complainant became seiied of a lot, of land, which is specifically described in the bill, and is now in the 'actual possession of said lot; that the defendant, Henry,II.Gage, :holds two tax deeds the said'lot, the first of which was issued'to, him by the county (\lerk of Cook county OIl orsboutthe tenth dayl af Febrnary, 1877, and 'th'e,other ofaaid tax deeds was to him by said'clerkon or about the nineteenthda:y'of April, 1880. The bill alsocontains!8.verments show-
ing that said tax deeds had been given in pursuance of tax sales for the non-payment of taxes which had been assessed on said lot since the appointment of the complainant as such assignee; and also .contains divers allegations and averments, charging that said taxes were illegally sessed; and that said tax titles, which have accrued in pursuance thereof, p.re void by reason of various illegal proceedings which are charged; and that said tax deeds have been duly recorded upon the record of land titles in the county where said land is situated, so that said deeds are a cloud uponconiplainant's title to said property; and prays that, by son of the illegality of said taxes, and the irregularity of the proceedings whereby said deeds were obtained, said deeds may be .set aside, and declared inoperative .as against complainant's title. The defendant has appeared, and pleaded, in substance, that t4e only title which complainant has in; to the property in. ;question was; acquired by him as such assignee in bankruptcy; and averring that the defendant has become the owner in fee-simple of the said real estate by virtue of said tax deeds; arrd that, ever since said deeds were issued to him, he has claimed title to said property in fee-simple adverse to that of the compla!nant;, apd he bas.held his. said title so to the saId complamant ever smce the date of saId deeds, respectIVely; and therefore insists and plea\ls .·tba.t.the right .of actiQn stated in complainant's bill did not accrue within two years before the bill was filed; and by seetion 5057, U. S., it is provided that "no suit, either at. law orin equity, shall be maintainable in any'coUi't :between an assignee in bankruptcy and a person claiming an adverse interest touching ,a.pyproperty transferable to or vested in said assignee, unless such suit be brought within two years from the time when s.uch cause of action 8:CCl11ed for or against such assignee; " and pleads such statute. and .said mll:1tprs in bar to said bill of complaint. The sufficiency of this plea has been argued before the court, the complainant insisting that, inasmuch as the cloud complained of in the bill did not exist at the time the complainant's title became vested in him, but accrued upon the title since the complainant became clothed with it, the barpleadedisnot operative as against him. I am clearly of opinion that the matter pleadedset!'l up a full and :complete answer to the complainant's case. Banks v. Ogden, 2 Wall. 57; Phelanv. O'Brien, 13 Fed. Rep. 656. The obvious object of the bank;rupt act, and of the provision 'contained in section 5057, is to secure lerity in the administration and closing up of bankrupt estates; hence it is made the>duty of the assignee to. proceed within two years to remove any clouds upon thetitle,or contest any adverse claim to any property ofthebanbuptat the time he becomes invested with the title; and,as to clouds or adverse claims, which arise upon the title to the after he becomes clothed with it, he'tnust proceed within two years after his cause ohiction accrues; a.ndhis cause oraction accrues certainly as soonM the. adverse title is asserted) and the record of such title made .upon the land records. In this case it that one of these tax deeds was obtained and duly recorded in 1877, and the. other in 1880)
and this suit-was not commenoed until December 11,1886; so that mOTe than two years had passed after thj:lsetax deedEi were made, and after a right of action to have theml'emoved.as clouds ul?pn the complainant's accrued to the complainant; and it cannot title, if they were cloqds, be allowed, I think, that this complainant shall be permitted to lie still, by him in his and let tax titles or other adverse titles to representative capacity accrue upon such property, and come into court, and seek relief by a bilUn equity after the, two years which the law allows hi)ll, have expired. The plea is therefore held to be a good defense to the cause of action set out in the bill.
(Oircuit Oourt. N: D. N61JJ York. April 1,188'1.1 ·
Ch$rges of irregular 'and illegal' conduct OntheP$rt of a circuit court commissioner,in conspiring with others to manufacture business for the purpose 'of extprting, fees from the government, such. as'institutingprosecutions,for frivolous offenses, procuring complaints to be made :with knowledge of the inadequacy of the proof, etc.· held not sustained by the' evidence adduced. in a proceeding looking to the removal of the commissioner from office.
The practice of encourltging prosecutions set On foot by "professional witnesses...· who spend a large portion of their time in ferreting out trivial and technical infractions of the revenue laws. Bolelyforthepurpose of obta.i:ning fees as witnesses, strongly condemned; the court intimating that its continu' ance will'be'deemed cause for removal.
SAHE-JUDICtAL AND ADHmISTRATIVE OFFICERS.
If it be necessary to employ spies and inforjDers to bring offenders to justice, it should be done by the administrative not the judicial officers of the government. '
An examiner of the department of justice in October, 1886, made, a, report charging William W,Gilbert, a oithe court, residing at Rochester, New York, with irregular and illegal conduct. 'rhis report, with the accompanying affidavits, was transmitted by the attorney to the court for such action as was deemed. ad visable. 'rhe court thereupon made an order, based upOll these ,papers, requiring the commissioner to show cause at the January term why he should not be removed from office. A partial hearing waathen had, and an adjournment was taken to enable the respondent to produce further evidence, and to give the United States attorney, who acted by request of the court, an opportunity to make a more extended examination of the contained in the rEjport. The matter came oufor final heariiig at the Maroh term, 1887. W. F. Cogwell, for respondent. D. N.Loclwood, U. S. Atty., opposed., andCoxE, JJ. ' Before W., . ... :