Woods v. Buckewell.

among the creditors as to the person to be elected assignee. The register reported to the district court that twelve votes, representing debts amounting to $39,192.78, were cast for Leonard Matthews as assignee, and eleven votes, representing $33,456.43, were cast for Henry Overstolz, the other candidate for the assigneeship, and certified that Leonard Matthews had been elected. Several other claims, however, had been withdrawn, rejected, or postponed, and questions arose concerning the action of the register or of the claimants themselves thereon. The facts relating to such claims were also reported by the register to the district court. Exceptions to the register's report were filed by Robert A. Buckewell and other creditors, and upon a hearing thereof the district court adjudged that no election of assignee had been made by the creditors, and appointed Robert K. Woods as assignee.

The petitioning creditors in the original bankruptcy proceeding brought the present petition in the circuit court against those creditors who excepted to Mr. Matthews' election, alleging that Mr. Matthews had been duly elected, and asking the circuit court to review and reverse the action of the district court, to annul the appointment of Mr. Woods, and to declare Mr. Matthews duly elected.

Hendershott and Chandler, for the petitioners.

Basil Duke, and Dryden & Dryden, for the respondents.

Mr. Justice MILLER.-This is a petition for review of the proceedings at the election of the asignee of the bankrupt's estate. The election was a close one. There were twentythree or twenty-four votes cast, and the register decided in favor of Leonard Matthews as the assignee, and against Henry Overstolz, the other candidate for the assigneeship. The proceedings at the meeting of creditors were brought to the attention of the district court, which held that there had

Woods v. Buckewell.

been no election by the creditors, and appointed Robert K. Woods as assignee. It is not claimed in the petition that any objection exists against Mr. Woods, but the quarrel seems to be among the creditors themselves. This court is asked to examine the details of the election, to count the votes, and to go into the qualifications of the voters. Now, I do not consider that the bankrupt act contemplates the bringing of this class of cases before the circuit court for review. The second section of the act provides "that the several circuit courts of the United States, within and for the districts where the proceedings in bankruptcy shall be pending, shall have a general superintendence and jurisdiction of all cases and questions arising under this act; and, except where special provision is otherwise made, may, upon bill, petition, or any other proper process, of any party aggrieved, hear and determine the case in a court of equity." To decide upon the legality of the votes or the qualifications of creditors involves no principle of equity, unless fraud in the election is alleged. The district courts are vested with large discretionary powers, in reference to the appointment and approval of assignees. Section 13 of the act contains the following provisions: "The creditors shall at the first meeting held after due notice from the messenger, in presence of a register designated by the court, choose one or more assignees of the estate of the debtor; the choice to be made by the greater part in value and in number of the creditors who have proved their debts. If no choice is made by the creditors at said meeting, the judge, or, if there be no opposing interest, the register, shall appoint one or more assignees. * * * All elections or appointments of assignees shall be subject to the approval of the judge; and when in his judgment it is for any cause needful or expedient, he may appoint additional assignees or order a new election." The discretionary power thus vested in the district court could scarcely

*

Mackay v. Easton.

be in stronger terms. Assignees and registers are but officers of the court and subject to its orders. The chief difficulty complained of concerning district judges (and in saying this I am not to be understood as referring to Judge TREAT) in connection with the bankrupt law has been that they do not hold a strong enough hand over the officers of the court, and see that they are prompt and efficient in the discharge of their duties. Such being the case, 1 shall not be the first to interfere with the discretionary powers of the district court in regard to the appointment and control of its officers. The petition is dismissed.

PETITION DISMISSED.

GEORGE R. MACKAY U. ALTON R. EASTON.

1. A patent issued in 1827, pursuant to a New Madrid certificate or warrant, under which both parties claimed title, and pursuant to the requirements of acts of Congress is valid, and possession by the defendant under the patent for ten years was held to entitle him to a verdict in an ejectment against him.

2. The case distinguished from Easton v. Salisbury (23 Mo. 100; S. C. in error, 23 How. 426), where the patent of 1827 was decided to be void. 3. Acts of Congress pertaining to the New Madrid locations referred to by TREAT, J.

(Before MILLER and TREAT, JJ.)

New Madrid Locations.-Ejectment.- Validity of Patent.

THIS was an action of ejectment to recover possession of certain land situated in the city of St. Louis, forming part of a tract which was located under New Madrid certificate No. 159, dated November 16, 1816, in favor of James Smith, upon which a patent was issued May 28, 1827, to said Smith or his legal representatives. Smith, on July 9, 1811, had had confirmed to him by the commissioners for the adjust

Mackay v. Easton.

ment of titles to land in the territory of Missouri, certain lots of land in New Madrid county, which lots were afterwards, and while still owned by him, materially injured by earthquakes; whereupon, by virtue of the act of Congress approved February 17, 1815, making provisions for the relief of sufferers by the New Madrid earthquakes, the certificate aforesaid was issued in the name of James Smith, and upon this certificate the patent above mentioned was issued to Smith or his legal representatives. Both parties in this action claimed under the James Smith in whose name the certificate of location was issued. Plaintiff claiming under a title bond by Smith to Andrew P. Gillespie, dated April 14, 1816, and under a deed by Smith to Gillespie, executed of date March 5, 1819, pursuant to the covenant to convey contained in such bond. Gillespie, in 1846, conveyed to William W. Gitt, who conveyed to plaintiff. Defendant claimed under a deed dated October 22, 1816, by James Smith to Rufus Easton, who, on June, 28, 1826, conveyed to William Russell, from whom the title passed through various intermediate holders to defendant.

The case was tried before a jury, Mr. Justice MILLER and Judge TREAT presiding. The court, through TREAT, J., instructed the jury that the patent of 1827, above referred to, was valid, and that the only point for their determination was whether the defendant had been in possession, under the patent, for ten years prior to the bringing of the suit, and that if they were satisfied that possession for that period had been proved, they would find for the defendant. The jury accordingly returned a verdict for defendant. may be observed that the same patent has been decided to be void in the case of Easton v. Salisbury, tried in the St. Louis court of common pleas, in 1855, before his honor, Judge TREAT (one of the judges who sat on the trial of the present case), a decision which was first affirmed by the supreme court of Missouri (23 Mo. 100), and afterwards, on writ of

It

Mackay v. Easton.

error, by the supreme court of the United States (21 Howard, 426). Conflicting as the decision in Easton v. Salisbury and that in the present case may appear, such conflict arises, not from a different interpretation of the law, but from the fact that in the former case there was wanting a link which in the present case has been supplied. In order rightly to understand the precise nature of this link, and the ruling of the court, an acquaintance with the acts of Congress pertaining to the New Madrid locations is necessary. This was stated by TREAT, J., as follows: "By the act of Congress above referred to, approved February 17, 1815, any persons owning lands in New Madrid county, and whose lands had been materially injured by earthquakes, were authorized, subject to the limitations and restrictions therein mentioned, to 'locate the like quantity of land on any of the public lands in the territory of Missouri, the sale of which was then authorized by law.' This act made it the duty of the recorder of land titles for that territory, upon proof of the title of any such person to the benefits of the act, to issue a certificate that such person was so entitled. Upon such certificate being issued, location was to be made, on claimant's application, by the deputy surveyor of the territory, who was required to survey the same and return a plat of such location to the recorder, with a notice designating tract located, etc., which notice and plat were to be recorded in said recorder's office, whose duty it then was to transmit to the commissioner of the general land office a report of the claims allowed and the locations made, delivering to the party a certificate of the circumstances and of his being entitled to a patent. This certificate was required to be filed with the recorder within twelve months from its date, and thereupon the recorder was to issue another certificate, which, being transmitted to said commissioner, entitled the party to a patent.

"Following this act and curative thereof in respect to the