Smith v. Hornesby

1. A bond for titles, and the holder’s interest in the land to which it relates, pass to his assignee in bankruptcy. After the assignee has disposed of the land to the obligor in the bond, though done illegally, fraudulently, and without consideration, the bankrupt cannot reclaim it by bill in the state court, and have a conveyance decreed, to himself, or damages awarded for a breach of the bond; his bill nbt alleging, either that the land or the bond constituted any part of his exemption, or that they were in excess of sufficient assets to satisfy all claims proved in bankruptcy against his estate. 2. If it would aid the complainant’s case to aver that he had withdrawn from bankruptcy, he has not so averred, except by way of reciting the contents of a previous bill, which is not sufficient; neither has he pleaded or exhibited any judgment of the court of bankruptcy permitting him to withdraw.

Equity. Bankrupt. Jurisdiction. Before Judge Buchanan. Campbell Superior Court. August Term, 1876. In December, 1874, Robert P. Smith filed his bill in the superior court of Campbell county, against Joseph Hornesby, of Campbell county; Ophelia M. Gorman and James M. Gorman, of Coweta county; S. C. Weems, of Spalding county; and W. J. Smith, of Henry county, making, in brief, the following case : On October 17th, 1858, Win. H. Smith, brother of complainant, bought of Joseph Hornesby, land, for $3,000.00, one-half cash, balance to become due on December 25th, 1860. Complainant took transfer of bond by purchase, and gave Hornesby his note for time payment. Was unable to meet note when it matured. Wm. IT. Smith was security thereon. On March 12th, 1866, Hornesby sued this note, and recovered judgment on October 15th, 1866, for principal of $1,605.00, and $652.25, interest to date of judgment. Execution issued on January 12th, 1867. On —• day of-, 1867, complainant filed his petition in bankruptcy. On October 20th, 1867, Hornesby collected from the deputy sheriff of Henry county $792.50, proceeds of complainant’s property sold before application in bankruptcy was filed. On the 14th of November, 1867, Hornesby, combining and confederating with his step-daughter, Ophelia M. Austell, to defraud complainant, took possession of said land and conveyed it to the said .Ophelia for the pretended sum of $2,500.00, and placed her in possession. Subsequently, Hornesby and Weems, assignee in bankruptcy, combined to defraud complainant, and said Weems, for no consideration, conveyed, by written agreement, -to the said Hornesby, all the interest which complainant had in said land. Thereafter, on February 3d, 1868, said Hornesby required W. IT. Smith, security, to settle up the balance due on said fi.fa., and transferred the same to him. On October 7th, 1871, W. IT. Smith, security, transferred tii&fi.fa. to one W. J. Smith, of Henry county, who took the same fully informed of the equity of complainant. About the — day of November, 1871, he caused the same to be levied on said land. On May 2d, 1872, complainant filed his bill in Henry county, alleging aforesaid facts, and that complainant, since date of transfer of bond for titles by Weems, assignee, bas withdrawn from bankruptcy. Prayed relief and injunction. Said bill remained in court until October adjourned term, 1873, at which term it was ordered to be dismissed, because the right of action of complainant was barred by the statute of limitations, and because the superior court of Henry county had no jurisdiction. This judgment was reversed on first ground, and affirmed on last. (See 53 Ga., 182.) Ophelia M. Austell, now Gormon, with her husband, Jas. M. Gormon, have been in possession of said land from November 14th, 1867, to present time, of yearly value, for rent, of $500.00. Complainant is ready and willing to pay the balance of the purchase money due on said execution, and tenders it. The land, if sold with present cloud upon title, will bring comparatively nothing. Prays as follows: 1. That W. J. Smith be enjoined from proceeding to sell said land under the aforesaid levy, until a hearing can be had on this bill. 2. That the deed made by Hornesby to Ophelia M. Austell be set aside. 3. That the transfer of the bond for titles made by Weems, assignee, to Hornesby be vacated. 4. That complainant have a general judgment against Hornesby, Ophelia M. and her husband, James M. Gormon, for $3,000.00 for rent. 5. That W. J. Smith be decreed to accept the sum of money due on said execution, which is tendered, and to deliver up the same to be entered satisfied. 6. That Hornesby be decreed to execute to complainant a good and sufficient warranty deed to the land, and that complainant have a writ of possession for the same. 7. Prays subpoena and general relief. Subsequently complainant amended his bill substantially as follows: Since tbe filing of tbe bill, tbe defendants have answered setting up that, at the time said Ophelia M. purchased the land from ITornesby, she had no notice that complainant had any equity in, or claim to, the same. Complainant, therefore, insists that if she purchased in good faith and without notice, that complainant would be entitled to recover of Hornesby the $1,500.00 paid him in the first instance, with interest thereon; also, $792.50 collected by Hornesby on his execution, with interest thereon, less the value of the rents during the period complainant had the same in possession; also, the amount due on said execution, now held by W. J. Smith against complainant, unless the said Flornesby shall, within a reasonable time after the rendition of a decree in this case, procure said execution to be entered satisfied and returned to the proper court. Prays as above indicated, and for general relief. To this bill were attached the following exhibits: 1. Execution therein referred to with following entries: (a) Receipt of plaintiff’s attorney for $792.50, amount realized from sale of debtor’s property, of date October 24th, 1867. (5) “ Griffin, Ga., December 25th, 1867. “ This execution settled this day by mutual consent, with the exception of $158.00 now due and unpaid on ÜAsfi.fa. [Signed] “Samuel O. Weems, “ Assignee. “ F. S. FrroH, “ Attorney for Hornesby.” ■ (c) “ This balance settled by W. H. Smith, security, February 3d, 1868. • [Signed] “Joseph Hornesby.” (d) “ I, W. H. Smith, security, transfer the within fi. fa. to W. J. Smith, without recourse on me. This October 7th, 1871. [Signed] “W. H. Smith.” 2. Deed from Hornesby to Ophelia M. Austell. 3. “ District Court of United States, “ Eor Northern District of Georgia, “ Griffin, November 27tli, 1867. “ In person appeared before me, Alexander Murray, register, Eobert P. Smith, who being duly sworn, saith, that since he filed his application in bankruptcy, he has lost a note for $21.00, signed by Mr. Leak, which is embraced in schedule JB, a, a part of the assets mentioned, and that he has been unable to find it. Deponent further swears that the bond of Joseph Hornesby, of Campbell county, as described, was also taken, or mislaid, during the Sherman raid, and he has been unable to find it. “ Eobert P. Smith. “Sworn to and subscribed before me this 27th November, 1867. “ Alexander Murray, “ Eegister in Bankruptcy.” “At Griffin, on the 2d of December, 1867, this day, I transfer to Joseph Hornesby, of Campbell county, in lieu of a bond held by E. P. Smith, the above indenture. Said bond was given by Joseph Hornesby to "W. H. Smith, and transferred by him to Eobert P. Smith. [Signed] “Samuel C. Weems, Assignee.” On demurrer, the bill was dismissed as not entitling complainant to the relief prayed for, or any other. To this ruling complainant excepted.