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plication to them, one at each corner of the square, one of them being located on lot 10; that some of the old brick were left on the ground, which the witness thought Childs & Sons abandoned, but they did not charge defendants for them, which were suitable for use in building, and were still there; that defendants made no use of them, but that witness thought they would have used them if they had gone into building operations; that either in the latter part of March or the first part of April, 1894, the defendants rented the entire square to one John A. Downing, who rented it for the purpose of converting it into a baseball park, but did not use it for that purpose; that he occupied the house which was on lot 7 for a dairy lunch, and sublet a portion of said house for a barber shop; that the acts he did in reference to the occupation of the vacant ground in that square were as follows: That he prevented various parties from depositing tools, tool boxes, and railroad iron on the square, though none was attempted to be deposited on lot 10; that on the said square there were a couple of holes where the brickkilns had existed, and that there are the foundations of some kilns built of brick still there, and that the said Downing remained as such tenant in occupation of the said square, as aforesaid, until June, 1895, when he sold his dairy lunch to a Mrs. Schulz, who took possession the same day; that after Isaac Childs & Sons left the square, which was in the winter of 1893-94, perhaps along in November, December, January, and February, they sold certain brickkilns, some of which were on lot 10, to James D. Childs, who in turn sold them to others, by whom they were taken away; that said James D. Childs did not claim the land said bricks were on; that Mrs. Schulz continued in occupation of the property from June, 1895, down to the time of the trial; that she rented the house with the privilege of using the entire square, provided she neither placed nor permitted others to place anything unlawful upon it; and that she had stopped parties from dumping earth upon the square and from driving across it, though she made no use of it herself.

"The defendants thereupon produced as a witness in their behalf Goff A. Hall, assistant assessor of the District of Columbia, who gave testimony tending to prove that he had examined the tax books from 1875 down to the time of the trial, and that throughout that period the taxes on said lot 10 had been assessed and paid in the name of the defendants and those under whom they claimed.

"Thereupon the plaintiffs in rebuttal gave testimony tending to prove that the brickyard was established some time in the fall of the year 1875, and disappeared some time in 1893, leaving nothing remaining but the remnants of the old brickyard, and that the bricks were all removed from the kilns about March or April, 1894."

We think the evidence was sufficient to

justify the action of the court in submitting the question to the jury, and the exceptions based on such action were not well taken.

2. Did the adverse possession apply to the title derived by the plaintiff Lucy T. Davis from her mother, Tracenia Latimer, and to the title of the plaintiff Millard P. McCormick, derived from his mother, Elizabeth McCormick?

It is one of the contentions of the plaintiffs that it did not apply to those titles, and error is based on a refusal of the court to so instruct the jury. The adverse possession began February 22, 1875. The suit was brought May 17, 1895. There were therefore 20 years and a few months adverse possession. Richard Young, the common source of title, died in 1860, testate. His will, in effect, devised the property in controversy to Matilda, his wife, for life; remainder to Tracenia and Elizabeth and other children. Both were then married.❤ Their mother, the life tenant, died October 7, 1874. Tracenia died November 17, 1879, and her husband April 20, 1880. She left two children, one of whom is the plaintiff Davis. Elizabeth died March 22, 1889. Her husband survived her, but died July 2, 1891. October 14, 1887, she and her husband conveyed their interests to their son, the plaintiff Millard P. McCormick. From the death of Elizabeth and her husband, five and four years, respectively, elapsed before suit, and from the date of the conveyance to Millard over eight years. Assuming that Tracenia Latimer and Elizabeth McCormick were under disability when the adverse possession commenced, did that possession ever run against their interests, and, if so, when did it commence to run?

The statute of limitations in force in the District is that of Jac. I. c. 16. Under that statute, no suit for lands can be maintained, except "within twenty years next after the cause of action first descended or fallen, and at no time after the said twenty years." Additional time is given to those under disability, as follows: "That if any person

shall at the time of said right or title of entry be or shall be at the time of the said right or title first descended, accrued, come or fallen within the age of twenty-one years, feme covert, non compos mentis, imprisoned, that then such person and persons, and his and their heir and heirs, shall or may, notwithstanding the said twenty years be expired, bring his action, or make his entry as he might have done before this act; (2) so as such person and persons, or his or their heir and heirs, shall within ten years next after his and their full age, discoverture, coming of sound mind, enlargement out of prison, or death, take benefit of, and sue forth the same, and at no time after the said ten years." Comp. St. D. C. p. 359, § 2.

More than 20 years elapsed after Tracenia's right accrued, as we have seen, before suit was commenced, and more than 10 years of that time accrued after her death and that of her husband. She died under disability, but

that made no difference. By the terms of the statute the time of limitation of suit commenced to run upon her death against her heir, Lucy T. Davis, and expired in 10 years. No disability of Lucy T. Davis, if she was under any, arrested the running of the statute. Cumulative disabilities cannot be used to that effect. Thorp v. Raymond, 16 How. 247; Demorest v. Wynkoop, 3 Johns. Ch. 129; Smith v. Burtes, 9 Johns. 174; Jackson v. Johnson, 5 Cow. 74; Walden v. Gratz's Heirs, 1 Wheat. 292; Hogan v. Kurtz, 94 U. S. 773; Mercer's Lessee v. Selden, 1 How. 37; McDonald v. Hovey, 110 U. S. 619, 4 Sup. Ct. 142.

The bar of the statute was therefore complete against her. But it was not complete sgainst Millard McCormick. Ten years of the period of adverse possession had not run after the death of his parents or after the conveyance to him and before suit was commenced, and we are brought to the cortention that a verdict should have been rendered for bim. Passing on and disposing of the contention adversely, Mr. Justice Shepard, speaking for the court of appeals, said:

"The rule is old and well established that, if one plaintiff in a joint action of ejectment cannot recover, his co-plaintiffs cannot. Morris v. Wheat, 8 App. D. C. 379, 385. Hard as this rule may seem to be, it was followed in that case in obedience to the decision of the supreme court of the United States in Marsteller v. McLean, 7 Cranch, 156, 159. In that case Mr. Justice Story said: 'It seems to be a settled rule that all the plaintiffs in a suit must be competent to sue; otherwise, the action cannot be supported.' And again: 'When once the statute runs against one of two parties entitled to a joint action, it operates as a bar to such joint action.' See, also, Shipp v. Miller, 2 Wheat. 316, 324; Dickey v. Armstrong, 1 A. K. Marsh. 39, 40.

"There has been no legislation affecting the rule of practice in the District of Columbia, and we do not consider it within our province to make a change therein.

"The apparent hardship to this plaintiff might have been avoided by a separate suit on his own behalf.

"The original rule at common law was that tenants in common could only sue separately because they were separately seised, and there was no privity of estate between them.* Mobley v. Brunner, 59 Pa. St. 481; Corbin v. Cannon, 31 Miss. 570, 572; May v. Slade, 24 Tex. 205, 507; 4 Kent, Comm. 368.

"The practice soon became general, however, in the United States, to permit them to sue each other jointly or severally, as they might elect. 7 Enc. Pl. & Prac. 316, and cases cited. This seems to have been the practice in the District of Columbia, and, so far as we are advised, has never been questioned. Tenants in common may join in an action if they prefer to do so, but it is with the risk of the failure of all if one of them fail to make out a title or right to possession."

These remarks express the rule correctly. It was urged at the argument by defendants in error, though not claimed in their brief, that neither Tracenia Latimer nor Elizabeth McCormick were under disability at any time during the period of adverse possession. The argument was that by the married woman's act of April 10, 1869 (14 Stat. 45), they were given the same remedies in regard to their property that they would have had if unmarried.

The contention presents an interesting question, and maybe involves the further one whether their husbands ever became tenants by the curtesy. But we need not pass on them. Assuming the disability of Tracenia and Elizabeth and such tenancy, the errors assigned on the instructions given or refused were not well taken.

3. There was introduced in evidence, as part of the chain of title of the plaintiff Lucy T. Davis, a deed from her to John H. Walter, and a reconveyance from him to her. From the latter was excepted "so much of all the lands and tenements above mentioned as had beer conveyed to the party of the first part (Walter) to other persons prior to the filing of a bill in equity cause 11,637 of the supreme court of the District of Columbia."

Walter was called as a witness by plaintiffs, and testified that such reconveyance was the only one he had made of lot 10,-the lot in controversy. Thereupon defendants' counsel cross-examined him at great length, against the objection of plaintiffs, regarding his business of buying and selling real estate, and the extent of it and character. The ruling of the court permitting the cross-examination is as signed as error. We see no error in it. The question of plaintiffs' counsel was a general one, and opened many things to particular inquiry. The extent and mauner of that inquiry was necessarily within the discretion of the court, even though it extended to matters not connected with the examination in chief. In Rea v. Missouri, 17 Wall. 532, it was said: "When the cross-examination is directed to matters not inquired about in the principal examination, its course and extent is very largely subject to the control of the court in the exercise of a sound discretion, and the exercise of that discretion is not reviewable on a writ of error."

It is also objected that Walter was subjected to discriminating remarks by the court. Plaintiffs requested the following instruction:

"The jury are instructed that there is no testimony in this case tending to rebut the testimony of the witness John H. Walter that he never conveyed lot 10 in controversy in this case to any person other than the conveyance by the deed to plaintiffs Charles M. N. Latimer, Lucy T. Davis, and others, and the jury would not be justified in finding to the contrary."

The court struck out the words in italics, and inserted instead, "and the weight to be

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1. The bankruptcy act of 1898 (30 Stat. 544) does not make insolvency an essential prerequisite in every case to an adjudication in involuntary bankruptcy.

2. A deed of general assignment for the benefit of creditors is made by the bankruptcy act of 1898 (30 Stat. 544) alone sufficient to justify an adjudication in involuntary bankruptcy against the debtor making such deed, without reference to his solvency at the time of the filing of the petition; hence the denial of insolvency by way of defense to a petition based upon the making of a deed of general assignment is not a good plea.

3. In paragraph c of section 3 of the bankruptcy act of 1898 (30 Stat. 546), providing that "it shall be a complete defense to any proceedings in bankruptcy instituted under the first subdivision of this section to allege and prove that the party proceeded against was not insolvent as defined in this act at the time of the filing the petition against him," the words "under the first subdivision of this section" do not refer to paragraph a of the section, defining acts of bankruptcy, as a whole, but to subdivision 1 of such paragraph, which makes the conveyance, transfer, concealment, or removal of property with intent to hinder, delay, or defraud creditors an act of bankruptcy.

4. The rules in bankruptcy promulgated by the supreme court were only intended to execute the act. and not to add to its provisions by making that which the statute treats in some cases as immaterial a material fact in every case. Therefore, though the rules and forms provide for an issue as to insolvency in cases of involuntary bankruptcy, where by the statute such issue becomes irrelevant because the particular act relied on conclusively imports a right to the adjudication in bankruptcy, if established, the allegation of insolvency in the pe tition becomes superfluous, or, if made, need not be traversed.

On Certificate from the United States Circuit Court of Appeals for the Fourth Circuit. W. W. Henry, for appellant. J. H. Ralston, for appellees.

Mr. Justice WHITE delivered the opinion of the court.

The facts stated in the certificate of the circuit court of appeals are substantially as follows:

Lea Bros. & Co. and two other firms filed on December 18, 1898, a petition in the dis

trict court of the United States for the Eastern district of Virginia, praying that an alleged debtor, the George M. West Company, a corporation located in Richmond, Va., be adJudicated a bankrupt, because of the fact that it had, on the date of the filing of the petition, executed a deed of general assignment, conveying all its property and assets to Joseph V. Bidgood, trustee. The George M. West Company pleaded, denying that at the time of the filing of said petition against it the corporation was insolvent, within the meaning of the bankrupt act, and averring that its property, at a fair valuation, was more than sufficient in amount to pay its debts. The prayer was that the petition be dismissed. The court rejected this plea, and adjudicated the West Company to be a bankrupt. The cause was referred to a referee in bankruptcy. and certain creditors secured in the deed of assignment, who had instituted proceedings in the law and equity court of the city of Richmond, under which that court had taken charge of the administration of the estate and trust under the deed of assignment, were enjoined from further prosecuting their proceedings in the state court under said deed of assignment. 91 Fed. 237. From this decree an appeal was allowed to the circuit court of appeals for the Fourth circuit. On the hearing of said appeal the court, desiring instructions, certified the case to this court. The certificate recites the facts as above stated, and submits the following question:

*"Whether or not a plea that the party against whom the petition was filed 'was not insolvent, as defined in the bankrupt act, at the time of the filing of the petition against him,' is a valid plea in bar to a petition in bankruptcy filed against a debtor who has made a general deed of assignment for the benefit of his creditors."

The contentions of the parties are as follows: On behalf of the debtor it is argued that under the bankrupt act of 1898 two things must concur, to authorize an adjudication of involuntary bankruptcy: First, insolvency in fact; and, second, the commission of an act of bankruptcy. From this proposition the conclusion is deduced that a debtor against whom a proceeding in involuntary bankruptcy is commenced is entitled, entirely irrespective of the particular act of bankruptcy alleged to have been committed, to tender, as a complete bar to the action, an issue of fact as to the existence of actual insolvency at the time when the petition for adjudication in involuntary bankruptcy was filed. On the other hand, for the creditors it is argued that while solvency is a bar to proceedings in bankruptcy predicated upon certain acts done by a debtor, as to other acts of bankruptcy, among which is included a general assignment for the benefit of creditors, solvency at the time of the filing of a petition for adjudication is not a bar, because the bankrupt act provides that such deed of general assignment shall, of itself alone, be adequate cause for an adjudica

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tion in involuntary bankruptcy, without reference to whether the debtor by whom the deed of general assignment was made was in fact solvent or insolvent.

A decision of these conflicting contentions involves a construction of section 3 of the act of 1898 (30 Stat. 546). The full text of the section in question is printed in the margin.1

It will be observed that the section is divided into several paragraphs, denominated as a, b, c, d, and e. Paragraph a is as follows:

"Sec. 3. Acts of Bankruptcy. (a) Acts of bankruptcy by a person shall consist of his having (1) conveyed, transferred, concealed, or removed, or permitted to be concealed or removed, any part of his property with intent to hinder, delay, or defraud his creditors, or any of them; or (2) transferred, while insolvent, any portion of his property to one or more of his creditors with intent to prefer such creditors over his other creditors; or (3) suffered or permitted, while insolvent, any creditor to obtain a preference through legal proceedings, and not having at least five days before a sale or final disposition of any property affected by such preference vacated or discharged such preference; or (4) made a general assignment for the benefit of his creditors; or (5) admitted in writing his inability to pay his debts and his willingness to be adjudged a bankrupt on that ground."

It is patent on the face of this paragraph that it is divided into five different headings,

1 Sec. 3. Acts of Bankruptcy. (a) Acts of bankruptcy by a person shall consist of his having (1) conveyed, transferred, concealed, or removed, or permitted to be concealed or removed, any part of his property with intent to hinder, delay, or defraud his creditors, or any of them; or (2) transferred, while insolvent, any portion of his property to one or more of his creditors with intent to prefer such creditors over his other creditors; or (3) suffered or permitted, while insolvent, any creditor to obtain a preference through legal proceedings. and not having, at least five days before a sale or final disposition of any property affected by such preference, vacated or discharged such preference; or (4) made a general assignment for the benefit of his creditors; or (5) admitted in writing his inability to pay his debts and his willingness to be adjudged a bankrupt on that ground.

(b) A petition may be filed against a person who is insolvent, and who has committed an act of bankruptcy within four months after the commission of such act. Such time shall not expire until four months after (1) the date of the recording or registering of the transfer or assignment when the act consists in having made a transfer of any of his property with intent to hinder, delay or defraud his creditors, or for the purpose of giving a preference as herein before provided, or a general assignment for the benefit of his creditors, if by law such recording or registering is required or permitted, or, if it is not, from the date when the beneficiary takes notorious, exclusive, or continuous possession of the property unless the petitioning creditors have received actual notice of such transfer or assignment.

(c) It shall be a complete defense to any proceedings in bankruptcy, instituted under the first subdivision of this section, to allege and prove that the party proceeded against was not insolvent, as defined in this act, at the time of the filing the petition against him, and if sol

which are designated numerically from 1 to 5. Now, the acts of bankruptcy embraced in divisions numbered 2 and 3 clearly contemplate, not only the commission of the acts provided against, but also cause the insolvency of the debtor to be an essential concomitant. On the contrary, as to the acts embraced in enumerations 1, 4, and 5, there is no express requirement that the acts should have been committed while insolvent. Considering alone the text of paragraph a, it results that the nonexistence of insolvency at the time of the filing of a petition for adjudication in involuntary bankruptcy because of the acts enumerated in 1, 4, or 5, which embrace the making of a deed of general assignment, does not constitute a defense to the petition, unless provision to that effect be elsewhere found in the statute. This last consideration we shall hereafter notice.

The result arising from considering the paragraph in question would not be different if it be granted arguendo that the text is ambiguous, for then the cardinal rule requiring that we look beneath the text for the purpose of ascertaining and enforcing the intent of the lawmaker would govern. Applying this rule to the enumerations contained in paragraph a, it follows that the making of a deed of general assignment, referred to in enumeration 4, constitutes in itself an act of bankruptcy, which per se authorizes an adjudication of involuntary bankruptcy entirely irrespective of insolvency. This is clearly vency at such date is proved by the alleged bankrupt, the proceedings shall be dismissed, and, under said subdivision one, the burden of proving solvency shall be on the alleged bank. rupt.

(d) Whenever a person against whom a petition has been filed, as hereinbefore provided under the second and third subdivisions of this section, takes issue with and denies the allegation of his insolvency, it shall be his duty to appear in court on the hearing, with his books, papers and accounts, and submit to examination, and give testimony as to all matters tending to establish solvency or insolvency, and, in case of his failure to so attend and submit to examination, the burden of proving his solvency shall rest upon him.

(e) Whenever a petition is filed by any person for the purpose of having another adjudged a bankrupt, and an application is made to take charge of and hold the property of the alleged bankrupt, or any part of the same, prior to the adjudication and pending a hearing on the petition, the petitioner or applicant shall file in the same court a bond with at least two good and sufficient sureties, who shall reside within the jurisdiction of said court, to be approved by the court or a judge thereof, in such sum as the court shall direct, conditioned for the payment, in case such petition is dismissed, to the respondent, his or her personal representative, all costs, expenses and damages occasioned by such seizure, taking and detention of the property of the alleged bankrupt.

If such petition be dismissed by the court, or withdrawn by the petitioner, the respondent, or respondents, shall be allowed all costs, counsel fees. expenses and damages occasioned by such seizure, taking or detention of such property. Counsel fees, costs. expenses and damages shall be fixed and allowed by the court, and paid by the obligors in such bonds.

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given his testimony is a proper question for the jury."

The instruction as requested assumed the credibility of the witness; as modified, that question was submitted to the jury, who were the judges of it, and we cannot suppose that the jury misunderstood the court or believed a discrimination was intended.

To the other assignments of error special consideration is not necessary to be given. Judgment affirmed.

(174 U. S. 590)

GEORGE M. WEST CO. v. LEA et al.

BANKRUPTCY

(May 22, 1899.)

No. 755.

ADJUDICATION IN INVOLUNTARY BANKRUPTCY-NECESSITY OF INSOLVENCY-GENERAL ASSIGNMENT AS ACT OF BANKRUPTCY CONSTRUCTION OF ACT OF 1898 EFFECT OF RULES.

1. The bankruptcy act of 1898 (30 Stat. 544) does not make insolvency an essential prerequisite in every case to an adjudication in involuntary bankruptcy.

2. A deed of general assignment for the benefit of creditors is made by the bankruptcy act of 1898 (30 Stat. 544) alone sufficient to justify an adjudication in involuntary bankruptcy against the debtor making such deed, without reference to his solvency at the time of the filing of the petition; hence the denial of insolvency by way of defense to a petition based upon the making of a deed of general assignment is not a good plea.

3. In paragraph e of section 3 of the bankruptcy act of 1898 (30 Stat. 546), providing that "it shall be a complete defense to any proceedings in bankruptcy instituted under the first subdivision of this section to allege and prove that the party proceeded against was not insolvent as defined in this act at the time of the filing the petition against him," the words "under the first subdivision of this section" do not refer to paragraph a of the section, defining acts of bankruptcy, as a whole, but to subdivision 1 of such paragraph, which makes the conveyance, transfer, concealment, or removal of property with intent to hinder, delay, or defraud creditors an act of bankruptcy.

4. The rules in bankruptcy promulgated by the supreme court were only intended to execute the act, and not to add to its provisions by making that which the statute treats in some cases as immaterial a material fact in every case. Therefore, though the rules and forms provide for an issue as to insolvency in cases of involuntary bankruptcy, where by the statute such issue becomes irrelevant because the particular act relied on conclusively imports a right to the adjudication in bankruptcy, if established, the allegation of insolvency in the pe tition becomes superfluous, or, if made, need not be traversed.

On Certificate from the United States Circuit Court of Appeals for the Fourth Circuit. W. W. Henry, for appellant. J. H. Ralston, for appellees.

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trict court of the United States for the Eastern district of Virginia, praying that an alleged debtor, the George M. West Company, a corporation located in Richmond, Va., be adjudicated a bankrupt, because of the fact that it had, on the date of the filing of the petition, executed a deed of general assignment, conveying all its property and assets to Joseph V. Bidgood, trustee. The George M. West Company pleaded, denying that at the time of the filing of said petition against it the corporation was insolvent, within the meaning of the bankrupt act, and averring that its property, at a fair valuation, was more than sufficient in amount to pay its debts. The prayer was that the petition be dismissed. The court rejected this plea, and adjudicated the West Company to be a bankrupt. The cause was referred to a referee in bankruptcy. and certain creditors secured in the deed of assignment, who had instituted proceedings in the law and equity court of the city of Richmond, under which that court had taken charge of the administration of the estate and trust under the deed of assignment, were enjoined from further prosecuting their proceedings in the state court under said deed of assignment. 91 Fed. 237. From this decree an appeal was allowed to the circuit court of appeals for the Fourth circuit. On the hearing of said appeal the court, desiring instructions, certified the case to this court. The certificate recites the facts as above stated, and submits the following question:

*"Whether or not a plea that the party against whom the petition was filed 'was not insolvent, as defined in the bankrupt act, at the time of the filing of the petition against him,' is a valid plea in bar to a petition in bankruptcy filed against a debtor who has made a general deed of assignment for the benefit of his creditors."

The contentions of the parties are as follows: On behalf of the debtor it is argued that under the bankrupt act of 1898 two things must concur, to authorize an adjudication of involuntary bankruptcy: First, insolvency in fact; and, second, the commission of an act of bankruptcy. From this proposition the conclusion is deduced that a debtor against whom a proceeding in involuntary bankruptcy is commenced is entitled, entirely irrespective of the particular act of bankruptcy alleged to have been committed, to tender, as a complete bar to the action, an issue of fact as to the existence of actual insolvency at the time when the petition for adjudication in involuntary bankruptcy was filed. On the other hand, for the creditors it is argued that while solvency is a bar to proceedings in bankruptcy predicated upon certain acts done by a debtor, as to other acts of bankruptcy, among which is included a general assignment for the benefit of creditors, solvency at the time of the filing of a petition for adjudication is not a bar, because the bankrupt act provides that such deed of general assignment shall, of itself alone, be adequate cause for an adjudica

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