generally, &c. Lands are A bankrupt's lands are not liable to a debt by statute or Freeholdsjudgment, unless execution is taken out upon it more than two calendar months before the opening of the commission; and not even then, if the statute or judgment not liable creditor had notice of any act of bankruptcy at the time to a staof levying such execution; for, in that case, he can only judgment come in pro ratá with the rest of the creditors. (1) But if debt, unless a statute be extended upon the bankrupt's lands before the previously period mentioned in the act, though the liberate is not taken out. sued out till afterwards, in that case, the lands are bound --- by the statute. (2) And where lands descend to a bankrupt as heir, and the ancestor was indebted at the time of his death, it has been determined, that a specialty creditor has the same right to follow the real assets, or their specific produce, in the hands of the assignees, as if the heir had not become bankrupt. (3) tute, or execution lands in joint te nancy. If a bankrupt is entitled to lands in joint-tenancy, and As to dies, — it is said (4) by Billinghurst, that there is no right of survivorship, and that his share may be sold under the commission; for that the bankrupt's moiety is bound by his bankruptcy, as he had power to sell it in his life-time, and might have departed with it. (5) It seems doubtful, however, if the bankrupt died before the execution of the bargain and sale, whether such moiety would in that case pass to the assignees; as the real estate, we have seen, is not till then taken out of the bankrupt at law. (6) And if the bankrupt dies before adjudication, the commission being in that case absolutely void (7), the whole estate would, of course, go to the surviving joint-tenant. As a valid commission of bankruptcy, however, followed up by adjudication and assignment, operates as a dissolution of (1) Newland v. Watts, 1 P. Wms. 92. Orlebar v. Duke of Kent, ibid. 737.; and see section 81. (2) 1 C. B. L. 373. (5) C. B. L. 279. Good, 89. (6) Doe v. Mitchell, ante, 304. (3) Ex parte Morton, 5 Ves, 449. 29. 1 Rose, 140. (4) Billing. 111. Freeholds partnership, it seems to be agreed, that it also severs a generally, joint-tenancy. (1) &c. veyance of estates tail. With respect to estates tail, the commissioners are emAs to con- powered to convey such estates immediately to a purchaser, without including them in the bargain and sale to the assignees, of the general freehold property of the bankrupt. For by the 65th section of the new act it is provided, that the commissioners may in like manner by deed indented and enrolled (2) make sale, for the benefit of the creditors, of any lands, tenements, and hereditaments, situate either in England, or Ireland, whereof the bankrupt is seised of any estate tail in possession, reversion, or remainder, and whereof no reversion or remainder is in the crown, of the gift or provision of the crown. And every such deed will be good against the bankrupt and the issue of his body, and against all persons claiming under him after he became bankrupt, as well as those whom the bankrupt by fine, common recovery, or any other means, might cut off or debar from any remainder, reversion, or other interest in such lands, tenements, and hereditaments. Where man in tail bank rupt, assignees Where a remainder-man in tail becomes bankrupt, the remainder- commissioners can only in such a case convey a base fee; and even where a joint commission issued against the tenant for life and the tenant in tail in remainder, it was holden, that the assignees only took an estate for life in the premises, and a base fee in remainder, determinable upon the death of the tenant in tail, and failure of heirs male of his body.(3) take only a base fee. A devise of lands not revoked Bankruptcy of itself has not the effect of revoking a devise of the bankrupt's real estate, provided the debts are (1) Evans on the Bankrupt Statutes, 17. note (b). (2) A particular period of time was limited for the enrolment of the conveyance of the bankrupt's estate tail, by the 21 Jac. 1. c. 19. s. 12. from which this section ap pears to be taken; but this section is, like that relating to the bankrupt's other freehold property, wholly silent upon the subject of enrolment. (3) Jarvis v. Tayleur, 5 B. & A. 557. &c. satisfied without having recourse to such estate; for the Freeholds statute takes the property out of the bankrupt only for the generally, purpose of paying his creditors; and from the moment that the debts are paid, the assignees are mere trustees for by bankthe bankrupt, and can be called on to convey back the surplus property to him.(1) Where an assignee dies, and the bankrupt's real estate becomes vested in the heir of the assignee, who happens to be an infant, a petition in that case should be presented to the Lord Chancellor to order the heir, as an infant trustee, to execute any necessary conveyance to a purchaser; but the application must be made to the Chancellor, not as sitting in bankruptcy, but under the statute of the 7 Ann. c. 19. relating to infant trustees and mortgagees. (2) ruptcy. Where an assignee dies, leaving an infant heir. more than two By section 81. of the new act, all conveyances by a bank- Conveyrupt, and all executions and attachments against his lands ances, &c. and tenements bona fide executed or levied more than two calendar months before the issuing of the commission, are declared to be valid, notwithstanding any prior act of bank- commisruptcy, provided the party had not at the time notice of sion, valid. any prior act of bankruptcy. months before the Chancellor may order bankrupt to join in any con And for the better security of the purchasers of the Lord bankrupt's estate, it is by the 78th section of the statute enacted, that the Lord Chancellor may, upon the petition of the assignees, or of any purchaser from them of any part of the bankrupt's estate, (if the bankrupt shall not try the validity of the commission, or if there shall have been a veyance. verdict at law establishing its validity) order the bankrupt to join in any conveyance of such estate, or any part thereof; and though he should fail to comply with such order, the bankrupt, nevertheless, and all persons claiming under him, will be estopped from objecting to the validity of such conveyance; and all estate, right, or title of the (1) Charman v. Charman, 14 Ves. 380. A A (2) Ex parte Beddom, 1 Rose, 310. Ex parte Kirk, Buck. 478. bankrupt will be as effectually barred by such order, as if the conveyance had in fact been executed by him. Copyholds veyed by the commissioners to a purchaser. SECTION II. Of Copyholds. In order to save the expense of more than one fine to to be con- the lord, upon the conveyance of the bankrupt's copyhold estate, that species of property is, as we have already seen (1), expressly excepted out of the general conveyance of the bankrupt's real estates to the assignees. For, if it was conveyed to them along with the freehold property, they could not make a good title to a purchaser, without first being admitted as tenants to the lord, and then surrendering to the purchaser; and as a fine is payable to the lord upon every admittance, there would thus be two fines paid, before the purchaser could be effectually admitted, This inconvenience was adverted to so long ago as in the time of Lord Hardwicke (2), who recommended the commissioners to do then, what they are now expressly directed to do by the provision of the present statute; —namely, to except the copyholds out of the general conveyance to the assignees, and to convey them to a purchaser in the first instance. Thus, by the 68th section of the new act, the commissioners are directed, by deed indented and enrolled in any court of record, to make sale, for the benefit of the creditors, of any copyhold (S), or customaryhold lands, or of (1) Section 64. ante, 348. (2) Drury v. Mann, 1 Atk. 96.; and see ex parte Harvey, Buck. 443. Ex parte Holland, Mad. 483. The practice adopted in consequence of this recommendation of Lord Hardwicke, seems, nevertheless, to have been incorrect, according to the strict construc tion of the 5 G. 2. c. 30. s. 26.; by which the commissioners were di rected to assign all the bankrupt's estate to the assignees. And see 1 Christian's B. L. 15. 472. (3) Of all the former bankrupt acts previous to the 5 G. 4. c. 98. copyholds were only expressly named in the 13 Eliz. c. 7. s. 3. any interest to which the bankrupt is entitled therein, and Copyholds. thereby to entitle or authorise any person on their behalf, to surrender the same for the purpose of any purchaser being admitted thereto. to com pound with lord and then to be ad for fines, mitted. And for the protection, also, of the lord, of whom such Purchaser copyhold estates are held, it is enacted, that every such purchaser shall, before he enter into or take any profit of the same, agree and compound with the lord for fines, dues, and other services, as theretofore have been usually paid for the same; - who shall thereupon, at the next or any subsequent court to be holden for the manor, grant unto such vendee upon request the said copyhold lands, for such estate or interest as shall have been so sold to him, reserving the ancient rents, customs, and services, and shall admit him tenant of the same. without gain and If the vendee tenders to the lord a competent fine, which When the lord refuses, and will not admit, the vendee may never- may enter theless enter (1) without admittance; for though a pur- admitchaser cannot in general enter and take the profits before tance. admittance, yet this is only a regulation for the benefit of the lord, the estate being out of the bankrupt immediately Relation by the bargain and sale, and vesting in the purchaser when of the baradmitted, by relation from the bargain and sale, so as to sale. avoid any intermediate claims. Thus, if the bankrupt die between the bargain and sale and the admittance of the purchaser, and the custom of the manor is, that the wife of any copyholder dying tenant, shall be entitled to her freebench, yet the wife of the bankrupt in this case will not be entitled to be so endowed. (2) bankrupt being admitted, dies before And where a bankrupt was entitled to a copyhold estate- When under a devise to testator's wife for life, remainder to the bankrupt and the heirs of his body, with remainder over in case the bankrupt should die without issue, or should not survive his mother - and there was no custom in the manor to entail copyholds—and the bankrupt survived his mother gain and (1) Stone, 127. (2) Parker v. Blecke, Cro. Car. 568. Sir W. Jones, 451. and before the bar sale. |