CASES ARGUED AND DETERMINED IN TUB
SYLVESTER
and others .".
DANZIGER.!
(Circuit Oowrt, E. D. Loui8iana. June 6, 1887.) (NSOLVENcy-DISCHARGE-FOREIGN CREDITOR.
Defendant made a cessio bonorum in the insolvent-court of Louisiana. Plaintiffs, citizens of New York. brought a'suit against the syndic of the Insolvent estate in the state court having jurisdiction thereof, to enforce a vendor's lien upon some goods sold by thelll to him; and, secondly, plaintiffs went into the insolvency court. and took a rule- to have certaiIi delivered to them, which, they alleged were their property, and not included in the cession. Held, that the plaintiffs could not be held to have implledlyassented to the defendant's discharge. 2
On Exceptions. HatTy H. HaU, for plaintiffs. Joseph P. Hornor and Francia B. Lee, for defendant. BILLINUS, J. The questionsubrnitted is whether, upon the facts stated in the plea, the plaintiffs have participated in the insolvency proceedings of the defendant, so as to conclude them by his discharge. The defendant had made a ce88io bonorum in the insolvent court ofthe state, and has since been discharged. What the plaintiffs are alleged to have done is-First, to bring a suit against the syndic of the estate to enforce a vendor's lien upon some goods sold by them to him; and, secondly, to go into the insolvency court, and take a rule to have certain goods delivered to them, which they alleged were their property, and not included in the cession. In the case of Hyde v. Stone, 20 How. 170, it was held that bringing in the state court a suit which was under the laws of Louisiana trans-
lReportedby Joseph P. Hornor, Esq., of the New Orleans bar. ZA discharge under the insolvency laws of Massachusetts does not bar the right of recovery of a non-resident creditor, unless he was a resident of the state at the time of the proceedings, pr voluntarily submitted to its jurisdiction and assented to the discharge. v. Atkinson, (N. H.) 5 At!. Rep. 710, and note.
v.32F.no.l-1
FEDERAL REPORTER.
ferred to the 'insolvency court, in which defendant's insolvency proceedings were then pending, and cumulating that suit with those proceedings, was not a participation in the insolvency proceedings in such a manner as constituted an asSen;t{ ,:frof. Parsons (2 Pars. Cont. 536) states the test to be "whether the creditOr has assented to the relief or or py- some equivalent act, as becomdischarge of the debtQr ing a party to the process against him under the law, 'taking a dividend and the like." In this case the question is, "Did the creditor do anything, or derive ' by, virt,ue .of.the' . ,I thmk he dId not. He followed up hIS nghts precIsely as he could have done without any insolvent law. He proved no claim. He received no dividend. His ip no respect changed from what it would have been if there had been no insolvent proceedings. He cannot be held to have impliedly assented to defendant's discharge. Let the exception beoverraled. '.. , '
SLYFIELDl1., HEALY.
(Oitrp'Uit (JoU/rt, 1V. D. Iowa, 1. TAX FOR SERVICE-LnUTATloN. ·
January Term, 1886.) OF EXPnu.TION-AF'FIDAvIT OF
Before the issuance of a county treasurer's deed of lands sold for taxes an that notice had been given to the owner of the expiration of the period for redemption was filed, which was defective in that the seal of the notary was not attached to the jurat. Held, that ,the defect was capable .of being remedied, and that tlle lapse offiveyears would operate as a bar to question the validity o'f the deed, under Code Iowa, § 902, providing that "action for the recovery of real property sold for non-payment of taxes must be brought'within five years from the execution of the treasUfer's deed." 2.
Code § 902, providing that ,aJ;l,action for the recovery of real estate sold for ntiu"payment of taxes must be brought within five years from the execution: of the treasurer's deed, cannot be setup as a defense to an action for tax sale, where notice of the of the period ofreredemption demption has, not been given to the actual owner of t):J.e land as reqUired by , ,,". i '
FOR REDEMPTION-LnilITATIOlj'.
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IilEquity. ,Bill to redeem certain realty from, tl;tX sale, and to quiet, title. A. F. Call and Geo. E. Clarke, for complainant. Wright' &'FarreU j for defendant. SHIRAS, J. Complainant seeks in this cause a decree to the effect that he is en.titleq to redeem two pieces of realty from tax sales, and prays that tax :executed by the treasuretof Palo Alto county be set aside, and complainant's title be quieted thereto. The case is submitted on a stipulation setting forth the facts, froID which it appears that complainant is the owner of the fee title to the S. W. t of N. W. t of section 11, town-
the