The title of a party who claims under the assignee will prevail against a party who obtained a conveyance from the bankrupt after the commencement of the proceedings in bankruptcy with notice of such title, although the assignment to the assignee was not acknowledged and recorded according to the laws of the State where the land was situated. Brady v. Otis, 14 B. R. 345; s. c. 40 Iowa, 97.

§ 5055. The assignee shall demand and receive, from all persons holding the same, all the estate assigned or intended to be assigned.

Statute revised - March 2, 1867, ch. 176, § 15, 14 Stat. 524.

If the assignee is satisfied that property taken by him does not belong to the bankrupt, he should surrender it without delay to the owners. In re Noakes, 1 B. R. 592.

ACT OF 1867, § 5056. No person shall be entitled to maintain an action against an assignee in bankruptcy, for anything done by him as such assignee, without previously giving him twenty days' notice of such action, specifying the cause thereof, to the end that such assignee may have an opportunity of tendering amends, should he see fit to do so.

Statute revised

March 2, 1867, ch. 176, § 14, 14 Stat. 522. Prior

Statute - April 4, 1800, ch. 19, § 49, 2 Stat. 34.

This section covers all the acts which the assignee honestly does in the discharge of the trust which the law casts upon him. The statute requires a specific notice. The mere presentation of a bill for services rendered is not sufficient. Hallam v. Maxwell, 2 Cinn. 136.

This section does no apply to an action of replevin to recover property which the assignee took from the possession of the plaintiff. Leighton v. Harwood, 12 B. R. 360; s. c. 111 Mass. 67.

No notice need be given to an assignee before bringing a bill to enjoin a judgment recovered by the bankrupt by his fraudulent contract. Weakley v. Miller, 1 Tenn. Ch. 523.

The omission to give notice to an assignee can only be taken advantage of by a plea in abatement. Ibid.

By appearing and filing a plea the assignee waives the want of notice before bringing the suit. Rowe v. Page, 13 B. R. 366; s. c. 54 N. H. 190.

ACTS OF 1867 and 1874, § 5057. No suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest, touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the

cause of action accrued for or against such assignee. And this provision shall not in any case revive a right of action barred at the time when an assignee is appointed.

Statutes revised March 2, 1867, ch. 176, § 2, 14 Stat. 518. Prior Statute - Aug. 19, 1841, ch. 9, § 8, 5 Stat. 446.

A suit is a prosecution of some demand in a court of justice. Wilt v. Stickney, 15 B. R. 23; s. c. 13 Pac. L. R. 61.

The cause of action accrues to the assignee on the execution of the assignment, and the limitation begins to run from that time. Lathrop v. Drake, 30 Leg. Int. 141.

On all matured claims and demands the cause of action accrues to the assignee at the date of the assignment; on all others from their maturity, or at the time when an action will lie, and he must sue from these dates respectively. Norton v. De la Villebeuve, 13 B. R. 304; s. c. 1 Woods, 163. This section applies equally to courts of equity and courts of law. Bailey v. Wier, 12 B. R. 24; s. c. 21 Wall. 342.

The limitation applies when the suit is brought in a State court as well as when it is brought in a Federal court. Comegys v. McCord, 11 Ala. 932; Archer v. Duval, 1 Fla. 219.

A suit is the lawful demand of a right at law or in equity, and it matters not what form is given to it by the legislative power, it still remains a suit in the sense of the definition, although it retains none of the features by which proceedings at law or in equity have been distinguished. Union Canal Co. v. Woodside, 11 Penn. 176.

The limitation applies only to suits growing out of disputes in respect to property and rights of property of the bankrupt, which come to the hards of the assignee, and to which adverse claims existed while in the hands of the bankrupt and before assignment. These disputes of claims affect the assets of the bankrupt, and an adjustment of them, either by compromise or suit, is indispensable, to a settlement and distribution of the estate among the creditors. A short bar by limitation to suits brought either by the assignee or the adverse claimant, furnishes a fit and appropriate remedy against delay where compromise is impracticable. In re Frederick J. Conant, 5 Blatch. 54; Stevens v. Hauser, 39 N. Y. 302; s. c. 1 Robt. 50.

It is entirely within the power of Congress, in establishing a uniform system of bankruptcy, to provide a uniform rule on the subject of actions, whether by or against an assignee in bankruptcy; and such rule must of necessity supersede all State legislation on the subject. If the right of action asserted by the assignee is not actually barred at the time of his appointment a case expressly saved by the proviso he has two years, and only two years from the time the cause of action accrued for or against such assignee. This is to apply, by the express words of the section, to actions brought "in any court whatsoever; " therefore in any court, State or Federal. Peiper v. Harmer, 5 B. R. 252; s. c. 8 Phila. 100. This is a separate and independent provision, and has no connection with any State statute on the subject. It may extend or it may contract

the time provided in the State statute of limitations. Thus if at the time of the appointment of the assignee but a few days remain of the time necessary to complete the bar, the time will be extended; or, if the statute has just commenced running, and under the State law would have ten years to run, it would be complete within two years. Freelander v. Holloman, 9 B. R. 331.

A petition to a court, to order a distribution of a fund lodged in its registry, is not an action or suit within the meaning of this clause. In re Masterson, 4 B. R. 553.

The limitation does not extend to an application by an assignee for money brought into a State court in proceedings instituted before the commencement of the proceedings in bankruptcy. Phillips v. Helmbold, 26 N. J. Eq. 202.

When the defendant only disputes the amount, there is no controversy in regard to the interests and rights touching the property. A voluntary assignor, under a void assignment, can not have or claim any adverse interest as against the assignee in bankruptcy. A claim against the bankrupt's estate, for services rendered to the bankrupt, is not within the statute. In re Krogman, 5 B. R. 116.

A venire to assess damages for land taken by a corporation is a suit at law. Union Canal Co. v. Woodside, 11 Penn. 176.

A claim for damages for the taking of the land of the bankrupt by a corporation is not barred, for the corporation is not an adverse claimant. Ibid.

The omission to bring the suit for more than two years after the cause of action accrued may be a good defense, if properly pleaded, but does not go to the jurisdiction of the court. Chemung Canal Bank v. Judson, 8 N. Y. 254.

The title of a party who purchases at a sale under a proceeding to foreclose a mortgage which was instituted after the commencement of the proceedings in bankruptcy, without making the assignee a party thereto, will not be rendered valid by the lapse of two years, unless he takes actual possession of the premises and occupies them in such a manner that the assignee must be presumed to have had notice thereof, or gives some notice, actual or constructive, to the assignee that he claims an adverse interest. Price v. Philips, 3 Robt. 448.

A mortgage does not of itself constitute an adverse claim, for it is simply a lien or charge on the land, and does not confer on the mortgagee any estate in the land. Price v. Philips, 3 Robt. 448. Vide Cleveland v. Boerum, 24 N. Y. 613; s. c. 23 Barb. 201; s. c. 27 Barb. 252.

An action on judgment is barred by the lapse of two years. Archer v. Duval, 1 Fla. 219.

The limitation applies, although the suit is brought in the name of the assignee for the use of a third person. Pike v. Lowell, 32 Me. 245.

If a party buys a judgment against the bankrupt, and purchases certain land at a sale, under an execution issued thereon, under a parol agreement that out of the proceeds he shall retain a debt due to him, and the money used to buy the judgment, and then pay the balance to the bankrupt, the

statute begins to run from the time when he receives the proceeds. Hyde v. Ely, 8 Pac. L. R. 147.

If the assignee is not made a party to a pending action until more than two years after his appointment, his claim will be barred, for the amendment by which he is made a party will not relate back, and thereby make him a party ab initio, and thereby defeat the limitation. Cogdell v. Exum, 10 B. R. 327; s. c. 69 N. C. 464.

A bill to set aside a fraudulent conveyance will be defeated by a plea of the statute of limitations, if more than two years have elapsed since the appointment of the assignee. Freelander v. Holloman, 9 B. R. 331; Botts v. Patton, 10 B. Mon. 452.

If a mortgagee enforces his lien in a State court after the commencement of proceedings in bankruptcy, the assignee has two years from the time of the sale in which he can institute proceedings to set it aside. Phelps v. Sellick, 8 B. R. 390.

This clause does not apply to a proceeding to set aside a sale made under a levy upon land, after the filing of a petition to enforce a judgment lien. Davis v. Anderson, 6 B. R. 145.

A suit merely to collect a debt, or enforce the payment of money due on a contract, does not fall within the provisions of this clause. The plaintiff does not claim an interest adverse to the defendant in or touching any property, or right of property, of the bankrupt, transferable to or vested in the plaintiff as assignee; nor does the defendant claim any interest adverse to the plaintiff in or touching any such property, or right of property. The defendant claims no ownership of or title to the debt or contract which the plaintiff seeks to enforce against the defendant; nor dies the plaintiff claim any ownership of or title to any specific property, or right of property, as having passed to him by virtue of his appointment, which the defendant also claims to own; nor does the defendant claim any ownership of or title to any specific property which belonged to the bankrupt. The limitation of two years applies only to such controversies. Moreover, it applies only to controversies of which the circuit court of the district has concurrent jurisdiction with the district court of the same district. Sedgwick v. Casey, 4 B. R. 496; s. c. 3 C. L. N. 177; Smith v. Crawford, 9 B. R. 38; s. c. 6 Ben. 497; Carr v. Lord, 29 Me. 51. Contra, Harris v. Collins, 13 Ala. 388; Norton v. Barker, 1 W. N. 29.

The limitation does not relate to an action by a purchaser to recover a debt which was sold as a part of the bankrupt's assets. Judson v. Lathrop, 6 La. An. 587.

This section does not apply to sales or conveyances, and the assignee may convey any portion of the estate after even the lapse of two years. Warren v. Miller, 38 Me. 108; Holbrook v. Brenner, 31 Ill. 501.

If the claim of the assignee is barred by the lapse of two years, he can not, by a transfer to another, confer a right of action which he has suffered to expire, and thus avoid the limitations. Cleveland v. Boerum, 23 Barb. 201; s. c. 27 Barb. 252; s. c. 24 N. Y. 613.

The limitation has no application to suits which are pending at the time of the commencement of the proceedings in bankruptcy. Kane v. Pilcher, 7 B. Mon. 651.

The limitation has no reference to suits growing out of the dealings of the assignee with the estate after it comes into his hands. These are matters for which he may be made personally responsible, and no reason existed for changing the general period of limitations any more than in the case of any other trustee dealing with trust property. In re Frederick J. Conant, 5 Blatch. 54.

The limitation does not apply to a party who takes possession of the property after the commencement of the proceedings in bankruptcy. Stevens v. Hauser, 39 N. Y. 302; s. c. 1 Robt. 50.

If an assignee, after instituting a suit, dies, and the new assignee institutes another suit instead of continuing the prior suit, the statute runs to the time of the institution of the second suit. Richards v. Maryland Ins. Co., 8 Cranch, 84.

The limitation provided by this section does not apply to a proceeding to review a decision of the district court. Wilt v. Stickney, 15 B. R. 23; s. c. 13 Pac. L. R. 61.

An action by an assignee of a bank to recover money paid by persons pretending to act as commissioners of the bank to their attorney, before the appointment of the assignee, is barred, unless it is brought within two years after that time. Miltenberger v. Phillips, 2 Woods, 115.

The limitation can not affect any suit, the cause of which occurred from an adverse possession taken after the bankruptcy, until the expiration of two years from the taking of such possession. Banks v. Ogden, 2 Wall. 58.

The failure of the assignee to sue and recover a distributive share of an estate of one of the bankrupt's children, to which the bankrupt was entitled, does not confer any right on the bankrupt to sue for it. Deadrick v. Armour, 10 Humph. 588.

If the claim of the assignee is barred by the limitation, the creditors may file a bill to set aside a fraudulent conveyance made by the bankrupt before the commencement of the proceedings in bankruptcy. Tichenor v. Allen, 13 Gratt. 15; Dewey v. Moyer, 16 B. R. 1; s. c. 16 N. Y. Supr. 473.

A bill to set aside a judgment recovered by the assignee on the ground of fraud is barred unless it is brought within two years from the time of the discovery of the fraud. Clark v. Hackett, 1 Cliff. 269.

When there has been no negligence or laches on the part of the plaintiff in coming to the knowledge of the fraud which is the foundation of the suit, and when the fraud has been concealed or is of such character as to conceal itself, the statute does not begin to run until the fraud is discovered by, or becomes known to, the party suing, or those in privity with him. Bailey v. Wier, 12 B. R. 24; s. c. 21 Wall. 342; Carr v. Hilton, 1 Curt. 230; Pritchard v. Chandler, 2 Curt. 488.

The limitation bars the action, although the assignee was ignorant of his rights, for the court can not engraft an exception on the statute. Norton v. De la Villebeuve, 13 B. R. 304; s. c. 1 Woods, 163.

This rule applies to suits at law as well as in equity. Bailey v. Wier, 12 B. R. 24; s. c. 21 Wall. 342.