WOOD V. WRIGHT.
Upon the undisputed facts of the case, there was neither absence nor other impediment to his prosecution, within the meaning of the statute. The prisoner has at all times been within the jurisdiction and amenable to justice, if the charge against him is.true. Therefore he is entitled to be discharged. The facts are such that, if brought to trial, he caunot possibly be found guilty or punished by court-martial for the desertion. If, on the facts, a question could arise whether the prisoner had, as a matter of fact, been absent from the jurisdiction, or, by reason of other impediment, had notbee:n amenable to justice, then it might, perhaps, be the proper province of the military court and not of this court on habeQ.8 corpus to determine that question. But the fact not being disputed that he has resided in the city of New, York continuously ever since his. desertion, the court-martial has :nothing to try, and his arrest for this cause is illegal. Petitioner discharged. NOTE. Notice has been tiled in the United States circuit court of an
application to be made by the military authorities of Governor's Island, through the judge advocate general, to Judge Blatchford for an appeal against the above order.
Ex'x, v. WRIGHT, Assignee.
(Circuit Oourt, D, Indiana. - - , 1880.)
1. ASSIGNEE IN BANKRUPTCY - JUDGMENT CREDITOR. - An assignee in bankruptcy has a prior .equity to a judgment creditor, where, under adverse proceedings, and through superior diligence, he has acquired land from the bona fide purchaser of the bankrupt'S voluntary grantee:
In Equity. DRUMMOND, C. J. This is a bill filed to determine the priority of lien between the plaintiff and the assignee of the bankrupts to a certain tract of land in Wells county, which originally belonged to one of the bankrupts, J. B. Julian. The facts out of wh}ch the controversy arise are I'lubstantially these; Julian sold the land to the other bankrupt
who sold it to Eliza Bryant on the eighth of August, 1876. These sales, it is admitted, were without consideration, and the last grantee held the property subject to the rights of creditors. A few days after the property was sold to Eliza Bryant, this plaintiff recovered a judgment in this court against the Julians, upon which there is a balance still unpaid. In September, 1876, the Julians were adjudged bankrupts. After all this had taken place, Jesse Cate loaned $1,000 to J. B. Julian, and in order to secure it he caused Eliza Bryant to transfer this property to Cate, and Cate made an agreement to rAconvey it to Eliza Bryant upon the payment of the loan. Cate had no notice that Eliza Bryant held the property without a consideration. He therefore was a bona fide mortgagee of the property. It was conveyed to him by an absolute deed. After this had occurred, the assignee brought suit in this courfagainst Cate and the Messrs. Julian and Mrs. Bryant, to have the claim of Cate to the property set aside; or, if that could not be done, to have a judgment entered against the J ulians for the value of the property; and the court held that Cate was an innocent purchaser, or grantee, and was entitled to protection; and that the J ulians and Mrs. Bryant were liable for a certain amount, on which the court decided judgment should be entered against them; although judg. ment was not, in fact, then rendered, the court only giving an opinion on the points in controversy. Subsequently, J. B. Julian made a proposition to the assignee to this effect: that no judgment should be entered in this court in the suit, and that he would procure for the assignee a good title to the property still held by Cate, to which proposition the assignee assented, providing it would meet the approval of the court, and that approval was given. Thereupon J. B. Julian caused a deed to be made by Martha Julian, of lands which she owned in Jasper county, to Cate, as security for the debt due to him in place of the land which he held by grant from Mrs. Bryant. That being done, Cate executed a quitclaim deed to Mrs. Bryant for the Wells county
WOOD 11.' 'WRIGHT·..
land-the land now in controversy. The deed was delivered to Julian. It does not appear that Mrs. Bryant had any knowledge of this, but she also executed a quitclaim deed to the assignee, and delivered the same to .Julian. Martha Julian and J. B. Julian also executed a quitclaim deed to the assignee. Mrs. Wood was not a party to the suit pending in thil court, and it is said the assignee had full knowledge of her judgment. Mrs. Wood caused an execution to be levied on the lands under her judgment, and the question is which has the better equity, the assignee or Mrs. Wood. I think the assignee has. ,' It seems to me, under the circumstances of the case, that the assignee must be remitted to the rights of Cate. Cate was the bona fide purchaser of the property, and held it relieved from the lien which undoubtedly existed on the part of Mrs. Wood prior to that time to the lands of Julian. The lien against land held fraudulently from the owner must certainly cease to operate when it is transferred to a bona fide purchaser. That Cate was so, was held by this court. And, when the assignee has obtained his title under circumstances like these, it seems to me that he stands in the position of a bona fide purchaser, and is entitled to the protection of a court of equity. But, independent of this consideration, and admitting that there were equities alike on the part of Mrs. Wood and of other creditors of the bankrupts, still it seems to me that the assignee, by the superior diligence he has exhibted by suing the Julians and Cate, and, as the result of that litigation, having obtained a title to the property, should have the protection of a court of equity in preference to Mrs. Wood. The bill of the plaintiff will be dismissed. v.4,no.6-33
In r, NEW BRUNSWICK CARPET Co., Bankrupt.
(District Court, I). Nf/W Jer8ey.
October 25, 1880.) 1. BANKRUPTCY ACT, § 5081-CLAm-MIsTAKE.-Section 5081 of the bankrupt act provides that the court" shall reject all claims not duly . proved, or where the proof shows the claim to be grounded in fraud, illegality, or mistake." Held, in construing this clause, that, in the absence of fraud, it was competent for the court to correct any mere mistake, and to allow tho proof to stand for any sum that, upon examination, wasfound to be actually due.
2. EVIDENCE-CHECK. -A check is· no evidence of a loan of money from
the drawee to the drawer. Fletcher v. Manning, 12 M. &. W. 571.
SAME-MoRTGAGEs.-Certain void mortgages 'held evidence, in this case, of the amount of an indebtedness of a bankrupt debtor.
In Bankruptcy. On petition to expunge claim of the State Bank of New Brunswick. R. Wayne Parker, for assignee. A. V. Schenck, for state bank. NIXON, D. J. On the fourth day of March, 1874, the State Bank of New Brunswick, by G. R. Conover, cashier, filed a proof of debt against the above-named bankrupt corporation, amounting, in the aggregate, to $667,351.75, being the balance alleged to be due to the creditor corporation for moneys paid at the request of the bankrupt on certain checks, notes, and acceptances made and given by the carpet company to the bank, and including the sum of $6,458.63 for interest from August 30, 1873, to October 22, 1873. On the twentysixth of June, 1876, Elias W. Miller, assignee of the bankrupt corporation, presented to the court a petition setting forth, in substance, that the claimant had improperly charged to the New Brunswick Carpet Company items of indebtedness aggregating $198,444.32, which were not chargeable against the bankrupt, and not sustained by the exhibits and vouchers submitted in support of the claim; and had omitted and not included in said proof of debt and statement accompanying the same a number of items, amounting to $638,843.95, for which the bankrupt should have been credited in its dealings