Removal. infirmity-he does not pay the costs occasioned by his removal, as he does when removed (1) for his own convenience. Nor is he liable to the petitioning creditor for his bill of costs as taxed by the commissioners, unless there is a charge of collusion between him and the new assignee. (2)

(1) Anon. 5 Mad. 76.

(2) In re Gibson, 1 G. & J. 303.

347

CHAP. XI.

OF THE ASSIGNMENT BY THE COMMISSIONERS.

PART I.

SECT. 1. Of Freehold Property generally, and the Mode of

Conveyance.

2. Of Copyholds.

3. Of Mortgages.

4. Of Offices.

5. Of Advowsons.
6. Of Reversions.

7. Of Powers.

8. Of a Possibility.

9. Of a voluntary Conveyance.

10. Of an executory or beneficial Contract.

11. Of the Estate of the Wife, and Property settled by the Bankrupt on his Wife and Children.

HAVING considered generally in the preceding chapter the nature of the interest taken by the assignees under the assignment of the commissioners, it is proposed in the present one to specify more particularly the effect and operation of the assignment, as it regards the various species of the bankrupt's property, dividing the subject into two parts: viz.

1. As it affects the Bankrupt's Real Estate.

2. As it affects the Personal Estate.

The Real estate may be treated of more conveniently under the foregoing heads.

Commis

convey to assignees the bank rupt's

lands, &c.

SECTION I.

Of Freehold Property generally, and the Mode of
Conveyance.

By section 64. (1) of the new act, the commissioners are sioners to directed, by deed indented and inrolled in any court of record, to convey to the assignees, for the benefit of the creditors, all lands, tenements, and hereditaments (except copyhold or customary hold) in England, Scotland (2), Ireland, or in any of the dominions, plantations, or colonies, belonging to his majesty, to which any bankrupt is entitled, and all his interest therein, of which he might have disposed himself, as well as all such lands, tenements, and hereditaments as he shall purchase, or which shall descend, be devised, revert to, or come to, such bankrupt before he shall have obtained his certificate; together with all deeds, papers, and writings respecting the same; and every such conveyance shall be valid against the bankrupt, and all persons claiming under him. Provided, however, that where, according to the laws of any plantation, or colony, such conveyance would require registration, enrolment, or recording, the same shall be so done; and that, prior to the same being done, the conveyance shall not invalidate the title of any purchaser for valuable consideration, without notice of the issuing of the commission.

Commissioners have only

The commissioners have no estate given them in the bankrupt's real property, by virtue of this enactment; but

(1) This section, (except as to the provision respecting copyhold and colonial property) is taken from the 13 Eliz. c. 7. s. 11.; and 5 G. 2. c. 30. s. 26.

(2) Previously to this act, a commission of bankruptcy in England was held by the Court of Session, not in itself to operate upon the

heritable property of the bankrupt in Scotland, though it was considered to impose upon him a legal obligation to execute the proper conveyances, and do the necessary acts for transferring such property to his assignees. Bank of Scotland v. Cuthbert, 1 Rose, 462.; and see Sellrig v. Davies, 2 Dow. P. C. 230.

a power,

must be

only a power, which must be strictly executed according to Freeholds generally, the directions of the statute, viz. by DEED INDENTED AND &c. ENROLLED; otherwise it will have no execution or effect in passing the estate. (1) No particular form of conveyance not an has ever been prescribed (by statute) for the commissioners estate. to convey the bankrupt's real estate; but that by bargain and sale (2), as being the cheapest, has been always adopted by them. Nor is any particular period of time limited in Bargain the above section, for the inrolment of the conveyance; but and sale under the statute of 27 Hen. 8. c. 16. (which applies to all enrolled bargains and sales) it must be enrolled within six months without delay. after its date, or it becomes null and void. (3) If the commissioners, however, were to adopt any other form of conveyance than that of a bargain and sale, such conveyance might be enrolled at any period. And though an enrolment pursuant to the statute of enrolments relates back, in general, to the date of the deed, yet in bankruptcy it is otherwise; for where an ejectment is brought upon a conveyance of the commissioners, and the demise is laid after the date of the deed, but before enrolment, (notwithstanding it may be duly enrolled afterwards) the ejectment cannot be maintained. (4) The bargain and sale, therefore, should be enrolled without delay; and if it is lost without enrolment, the Lord Chancellor will not make an order that the counterpart shall be enrolled as the original deed. (5)

Where, however, lands had been bargained and sold by a bankrupt before his bankruptcy, though the enrolment of the bargain and sale did not take place until after the bankruptcy yet it was held in this case, that the commissioners had not power to convey these lands to the assignees. (6)

Freeholds

&c.

Relation

of bargain and sale.

The bargain and sale does not (as the assignment does generally, with regard to the personal property) relate back to the act of bankruptcy; for all the real estate of the bankrupt remains in him, though not beneficially, until taken out of him by the actual execution of the bargain and sale (1); and therefore a demise in ejectment, though laid after the act of bankruptcy, yet if it is before the date of the bargain and sale, has been holden to be bad. A court of equity, however, has refused to dismiss a bill of foreclosure against the assignees of a bankrupt mortgagor, on the ground, that it was brought before the execution of the bargain and sale by the commissioners, and that the assignees had no interest which could be made the subject of foreclosure. (2) Operation. As the conveyance of the bankrupt's lands to the assignees operates only upon those estates, of which the bankrupt is possessed, or to which he is entitled at the time of executing the deed, if, therefore, any future estates come to him, between the time of the bargain and sale and the time of his obtaining his certificate, there must be a new conveyance. (3)

Passes a

But the conveyance of the freehold property passes any vested con- contingent interest, which the bankrupt may have in any tingent interest: lands or tenements, and which is vested in him at the time of his bankruptcy. Therefore, where an estate was settled to the bankrupt for life, with other intervening uses, remainder to himself in fee, with power to change the uses,the remainder in fee was held to vest in the assignees, and his power of revocation to be gone. (4)

and a right

A right of action is within the policy of the bankrupt of action. laws; and therefore a right to bring a real action passes by the general words hereditaments, right, claim, &c. in the bargain and sale. (5)