On the 23d of February, 1876, certain creditors filed their
petition in the District Court of the United States, praying that
A. should be declared a bankrupt. On the 9th of March, he appeared,
and leave was given them to amend their petition, by adding new
causes of bankruptcy or otherwise. On the 16th of April, he filed
his answer, denying that the aggregate of the claims of the
petitioners amounted to one-third of the debts provable against
him. Time was thereupon allowed for other creditors to unite with
the petitioners, and the previous leave to amend the petition was
continued. On the 22d of that month, one B. was permitted to unite
with the petitioning creditors, and their petition was amended by
alleging that A, within six months before the petition was filed
committed, by the nonpayment of his commercial paper, an act of
bankruptcy. The amount of A's debts then represented was
sufficient, and upon the alleged act of bankruptcy set forth in the
amended petition, A. was duly declared a bankrupt. On the 12th of
July, 1875, an assignment was made to C. as assignee which included
all the property and effects of every kind in which A. "was
interested or entitled to have" on the 23d of February, 1875. C.
filed, July 7, 1877, his bill to reach certain securities which had
been transferred by A. on or about March 20, 1875.
Held:
1. That the continuity of the proceedings in bankruptcy was
unbroken, and that the assignment was operative, according to its
terms, although the act upon which the adjudication was had was
first alleged in said amendment to the petition.
2. That C.'s suit was not barred by the statute of
limitations.
Page 101 U. S. 404
The facts are stated in the opinion of the Court.
MR. JUSTICE SWAYNE delivered the opinion of the Court.
These are suits in equity. Our attention will first be given to
the first-named case. The bill was filed by the appellee, Hoyt
Sherman, as assignee in bankruptcy of Benjamin F. Allen, to reach
certain securities therein described, which were transferred to the
appellants by the bankrupt to secure the payment of two promissory
notes of T. A. Andrews & Co., a firm consisting of T. A.
Andrews and the bankrupt. One of the notes was for $15,000, and was
held by the International Bank. The other was for $5,000, and was
held by the appellant Hickling. On the 23d of February, 1875, a
creditor's petition was filed in the district court praying that
Allen should be declared a bankrupt. On the 9th of March, Allen
appeared before the district judge. The hearing was postponed until
the 16th of that month. Allen was given until that time to answer,
and leave was given to the creditors to amend their petition, by
adding new causes of bankruptcy or otherwise. Nothing further
material was done in the case until the 16th of April following,
when Allen filed his answer denying that the aggregate of the
claims of the petitioning creditors amounted to one-third of the
debts provable against him. Ten days was thereupon allowed for
other creditors to unite with the petitioners, and the leave before
given to amend the petition was continued. On the 22d of April
following, Receiver Burley was permitted to unite with the
petitioning creditors by signing the petition, which he did, and
the petitioning creditors, including Burley, thereupon amended
their petition. The amount of the debts of the bankrupt then
represented was sufficient. The amendment set an act of bankruptcy
by Allen in not paying his commercial paper within six months next
preceding the time of filing the petition. An order of adjudication
was duly entered, and on the 12th of July, 1875, an assignment was
made to Hoyt Sherman,
Page 101 U. S. 405
as assignee. The assignment included all the property and
effects of every kind in which Allen, the bankrupt, "was interested
or entitled to have on the twenty-third day of February, A.D.
1875."
The continuity of the proceeding from the outset was unbroken.
The original petition was amended by inserting an act of bankruptcy
which occurred before the petition was filed, as before stated, but
the original petition was in no wise either dismissed or abandoned.
There is no pretense for alleging either.
The assignment related back to the commencement of the
proceeding, which was by filing the petition on the 23d of
February, 1875, and the title of the assignee to all the property
and effects of the bankrupt became vested as of that date.
Rev.Stat. 980, sec. 5,044.
This bill was filed on the 7th of July, 1877. It was amended
twice, but the amendments were chiefly verbal. Their effect was
only to give greater precision to the charges already made. The
framework of the bill remained the same. No new cause of action was
introduced. The changes were not such as could have any effect with
respect to the statutory limitation as to suits by or against
assignees in bankruptcy. The limitation in such a case is two
years. Rev.Stat. sec. 5,057. The time begins to run when the
assignee is appointed. Bump on Bankruptcy 558. The appellee having
been appointed assignee on the 12th of July, 1875, and the bill
having been filed on the 7th of July, 1877, it escaped the bar of
the limitation prescribed by five days. The statute, therefore,
does not affect the case, and may be laid out of view. No further
remarks as to this aspect of the proceeding will be necessary.
The assets involved in this controversy were transferred to the
appellants on or about the 20th of March, 1875. The bill proceeds
upon the assumption, and charges, that the title vested in the
assignee for all the purposes of this case on the 23d of February,
1875, and that hence, when the transfer was made by the bankrupt,
he had no title and no control over the property. This is denied by
the appellants. They insist that as the act of bankruptcy upon
which the adjudication was founded was introduced into the petition
by an amendment made on the
Page 101 U. S. 406
22d of April following, the title of the assignee cannot be held
to have vested at an earlier time, and that Allen therefore had the
title when he made the transfer.
The court below held according to the theory of the bill.
The statute is clear and imperative. Its constitutional validity
is not questioned. It contains no qualification. We cannot
interpolate what is claimed. Such a function is beyond the sphere
of our power and duty. It is our business to execute the law as we
find it, and not to make or modify it. In the disposition of
property among creditors, equality is equity. It was the genius and
purpose of the statute to secure this result as far as possible
from the moment its aid was invoked, whether by debtor or creditor.
The power of amendment is incident to all judicial administration.
Its exercise is vital to the ends of justice.
Tilton v.
Cofield, 93 U. S. 163. The
filing of the petition was a caveat to all the world. It was in
effect an attachment and injunction. Thereafter all the property
rights of the debtor were
ipso facto in abeyance until the
final adjudication. If that were in his favor they revived and were
again in full force. If it were against him, they were extinguished
as to him and vested in the assignee for the purposes of the trust
with which he was charged. The bankrupt became, as it were, for
many purposes,
civiliter mortuus. Those who dealt with his
property in the interval between the filing of the petition and the
final adjudication, did so at their peril. They could limit neither
the power of the court nor the effect of the final exercise of its
jurisdiction. With the intermediate steps they had nothing to do.
The time of the filing of the petition and the final result alone
concerned them. In this case the title of the assignee is in all
respects just what it would have been if the bankrupt had done
nothing, and there had been no interposition by the appellants.
Otherwise the efficacy of the act depended not upon its own
language and meaning, but was only what others outside of the
proceeding might choose to permit it to be. This would be a
solecism, and largely defeat the purpose of the statute and the
policy of Congress in enacting it. We concur entirely in the
opinion of the circuit court upon the subject.
The bankrupt was under arrest upon civil process when the
Page 101 U. S. 407
transaction complained of by the bill occurred, and the
appellants knew of the filing of the petition against him, and of
his utter insolvency when they received the assets.
Our opinion in this case disposes also of the other. The record
shows that the rights of Witherow were settled and provided for by
a decree in another litigation to which he and the assignee were
parties. The cross-bills were properly dismissed.
Decrees affirmed.