HUGHES, District Judge.
There are two questions to be decided in this case: (1) What was Drewry’s interest, after the bankruptcy of Walker, in the one-seyenth of the Mount Blanc property derived by him from W. C. Claiborne'/ (2) Was that interest affected by the proceeding of the assignees for a sale, and by the sale which they made?
1. I cannot consent to the proposition that Drewry’s letter to Walker, of the 11th of September, 1SG7, saying that he had purchased W. C. Claiborne’s seventh of Mount Blanc for F. G. Claiborne, exonerated Walker as purchaser from F. G. Claiborne from the effect of the rule caveat emptor, and relieved him of the duty of looking to the title. Suppose F. G. Claiborne had been a minor or a married woman, would such a letter to Walker have justified him in accepting a deed of the property from F. G. Claiborne? Certainly it was his duty to see that his vendor was competent to make a deed. The universal custom is for the purchaser of real estate to look to the record. That custom and the rule of caveat emptor required Walker to go to the deed-books of the county of Pittsyl-vania, and to withhold payment of the purchase-money until he had ascertained the competency of F. G. Claiborne to convey W. C. Claiborne’s interest in Mount Blanc, by finding W. C. Claiborne’s deed to F. G. Claiborne for that interest on record, or something equivalent to a deed. The letter of Drewry contained no such assurance of 'title. It was equivalent to declaring to Walker that he had purchased and held the title to the property himself, but did so for F. G. Claiborne, when Claiborne should entitle himself to a conveyance of it, and that Claiborne could in meantime act for him as his agent, to the extent that agents for the sale of real estate may legally act. It was indeed notice to Walker that Drewry owned the property. A brief note, such as that of Drewry to Walker, cannot be held to authorize a third person, mentioned as F. G. Claiborne was, to make a deed-of the property to the purchaser. If so, what would become of all those wise provisions of law requiring formal conveyances of real estate to be made bjr solemn deed, express personal acknowledgments of them to be made before magistrates or clerks of courts, and privy examinations of married women as to relinquishment of dower, to be solemnly taken. A brief note such as that in question cannot be held to have passed Drewry’s title to Claiborne, and can be allowed no other construction than that of making F. G. Claiborne its author’s agent to make a contract of sale. F. G. Claiborne's deed to Walker, therefore, was a nullity as to the seventh interest of Drewry, so far as Drewry could be affected by it, and it conveyed neither legal nor equitable title to Walker. But this letter or-nóte followed by Drewry’s accepting Walker’s negotiable note for $2,000 in purchase of Drewry’s seventh interest, did bind Drewry to the sale made by Claiborne, as his agent The deed of W. C. Claiborne to Drewry, duly recorded on the 30th of March, 1868, before the adjudication of Walker in bankruptcy, and before the appointment of Walker’s as-signee, was notice of Drewry’s title in the property to the assignees, and put them to the duty of inquiring after the deed of escrow, which Drewry deposited with Isaacs & Co. on the 22d of May, 1868, shortly after the appointment of the assignees. Walker’s interest was only an equitable one, subject to the deed of escrow.
On the whole, the present condition of the title is this, the deed is still an escrow; it will be ineffectual to convey Drewry’s interest to the assignees of F. G. Claiborne, who now are the assignees of Walker, until the note for the purchase-money of $2.000, with interest, is paid, and in the meantime the equitable title belongs to the assignees of Walker, the maker of the note. Of course, all this is said without reference to any lien previously existing, which may have followed the interest when it was transferred by W. C. Claiborne to S. D. Drewry. So far as the decree herein of April 4th, 1S72, is inconsistent with the condition of the title as thus defined, it is erroneous, and, after proper proceedings, should be corrected, for it was error to decree that this seventh interest in Mount Blanc was absolutely the property of Drewry. The legal title only is in Drewry until the purchase-money due upon it, with interest, is paid. Then, and not before, must the deed go upon record, and then only would the title pass to the assignees of Walker.
2. The equitable title of that seventh interest having been in the assignees of Walker, in August, 1S6S, subject to the lien of Drewry, under his deed of escrow, the second question is, was the proceeding for fhe sale of Walker’s interest in Mount Blanc, affectiugthis seventh, such as to bind Drewry? That question does not admit of doubtful answer. The petition for the sale was filed in this court on the 5th of August, 186S, and on the next day, without notice of its'filing to any human being in interest, a decree of sale was made. There had been a previous consent by F. G. Claiborne and I. A. Claiborne by counsel to the sale, so far as their own respective interests were concerned, but the decree of sale, if binding anybody at all, binds nobody who was then interested in the Mount Blanc property, except those two men. There is not a particle of proof, nor is there even a pretence, that in giving that consent, F. G. Claiborne acted as agent of Drewry. It is contended, on the contrary, that Isaacs & Co., who still formally held Walker’s note, were then agents of Drewry, and it is alleged that they had notice of the petition. If they were [1077]*1077agents of Drewry at all, they were so only as to the note. They were merely holders of paper owned by Drewry, and secured on real estate, the legal title to which was in Drewry, a title which could not be affected except by personal notice to Drewry. But even if Isaacs & Co. were agents of Drewry. both as to the note and as to Drewry’s legal title in the seventh interest in Mount Blanc, they bad no notice. They not only are not proved to have bad notice, and did not have notice of the petition for sale, but it was impossible for them to have had it, living as they did in Richmond, a hundred and fifty miles from Danville, where the petition was filed. Even if they had had notice, the notice of one day would have been insufficient and an absolute mockery. The truth is, that no lien creditor had notice of the petition for this sale. It was filed on one day, and the decree granted on the next. Such a decree, without previous notice to lien creditors and without any time allowed them to have got wind of the proceedings, was absolutely null and void so far as it concerned them. Both sales made under this decree, as well the first sale at which F. 6. Claiborne became the purchaser as the second sale under which TV. TV. Keen became the purchaser, and also the decree in confirmation of the resale, and the deed made in execution of it. were null and void as to the seventh interest of Drewry. I am not called upon to speak of its validity as to any other interest; but I will say that since I have come upon the bench in January, 1S74, personal notice to lien creditors and a specific ascertainment of liens and their priorities, have been cardinal prerequisites to sales of real estate by assignees, and it is impossible for me to confirm any sale where they have been wanting. In this case they have been wholly wanting, grossly wanting.
The order of this court made upon the petition of Drewry on the 4th April. 1S72, setting aside the sale as to Drewry’s interest, must therefore stand.
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HUGHES, District Judge.
There are two questions to be decided in this case: (1) What was Drewry’s interest, after the bankruptcy of Walker, in the one-seyenth of the Mount Blanc property derived by him from W. C. Claiborne'/ (2) Was that interest affected by the proceeding of the assignees for a sale, and by the sale which they made?
1. I cannot consent to the proposition that Drewry’s letter to Walker, of the 11th of September, 1SG7, saying that he had purchased W. C. Claiborne’s seventh of Mount Blanc for F. G. Claiborne, exonerated Walker as purchaser from F. G. Claiborne from the effect of the rule caveat emptor, and relieved him of the duty of looking to the title. Suppose F. G. Claiborne had been a minor or a married woman, would such a letter to Walker have justified him in accepting a deed of the property from F. G. Claiborne? Certainly it was his duty to see that his vendor was competent to make a deed. The universal custom is for the purchaser of real estate to look to the record. That custom and the rule of caveat emptor required Walker to go to the deed-books of the county of Pittsyl-vania, and to withhold payment of the purchase-money until he had ascertained the competency of F. G. Claiborne to convey W. C. Claiborne’s interest in Mount Blanc, by finding W. C. Claiborne’s deed to F. G. Claiborne for that interest on record, or something equivalent to a deed. The letter of Drewry contained no such assurance of 'title. It was equivalent to declaring to Walker that he had purchased and held the title to the property himself, but did so for F. G. Claiborne, when Claiborne should entitle himself to a conveyance of it, and that Claiborne could in meantime act for him as his agent, to the extent that agents for the sale of real estate may legally act. It was indeed notice to Walker that Drewry owned the property. A brief note, such as that of Drewry to Walker, cannot be held to authorize a third person, mentioned as F. G. Claiborne was, to make a deed-of the property to the purchaser. If so, what would become of all those wise provisions of law requiring formal conveyances of real estate to be made bjr solemn deed, express personal acknowledgments of them to be made before magistrates or clerks of courts, and privy examinations of married women as to relinquishment of dower, to be solemnly taken. A brief note such as that in question cannot be held to have passed Drewry’s title to Claiborne, and can be allowed no other construction than that of making F. G. Claiborne its author’s agent to make a contract of sale. F. G. Claiborne's deed to Walker, therefore, was a nullity as to the seventh interest of Drewry, so far as Drewry could be affected by it, and it conveyed neither legal nor equitable title to Walker. But this letter or-nóte followed by Drewry’s accepting Walker’s negotiable note for $2,000 in purchase of Drewry’s seventh interest, did bind Drewry to the sale made by Claiborne, as his agent The deed of W. C. Claiborne to Drewry, duly recorded on the 30th of March, 1868, before the adjudication of Walker in bankruptcy, and before the appointment of Walker’s as-signee, was notice of Drewry’s title in the property to the assignees, and put them to the duty of inquiring after the deed of escrow, which Drewry deposited with Isaacs & Co. on the 22d of May, 1868, shortly after the appointment of the assignees. Walker’s interest was only an equitable one, subject to the deed of escrow.
On the whole, the present condition of the title is this, the deed is still an escrow; it will be ineffectual to convey Drewry’s interest to the assignees of F. G. Claiborne, who now are the assignees of Walker, until the note for the purchase-money of $2.000, with interest, is paid, and in the meantime the equitable title belongs to the assignees of Walker, the maker of the note. Of course, all this is said without reference to any lien previously existing, which may have followed the interest when it was transferred by W. C. Claiborne to S. D. Drewry. So far as the decree herein of April 4th, 1S72, is inconsistent with the condition of the title as thus defined, it is erroneous, and, after proper proceedings, should be corrected, for it was error to decree that this seventh interest in Mount Blanc was absolutely the property of Drewry. The legal title only is in Drewry until the purchase-money due upon it, with interest, is paid. Then, and not before, must the deed go upon record, and then only would the title pass to the assignees of Walker.
2. The equitable title of that seventh interest having been in the assignees of Walker, in August, 1S6S, subject to the lien of Drewry, under his deed of escrow, the second question is, was the proceeding for fhe sale of Walker’s interest in Mount Blanc, affectiugthis seventh, such as to bind Drewry? That question does not admit of doubtful answer. The petition for the sale was filed in this court on the 5th of August, 186S, and on the next day, without notice of its'filing to any human being in interest, a decree of sale was made. There had been a previous consent by F. G. Claiborne and I. A. Claiborne by counsel to the sale, so far as their own respective interests were concerned, but the decree of sale, if binding anybody at all, binds nobody who was then interested in the Mount Blanc property, except those two men. There is not a particle of proof, nor is there even a pretence, that in giving that consent, F. G. Claiborne acted as agent of Drewry. It is contended, on the contrary, that Isaacs & Co., who still formally held Walker’s note, were then agents of Drewry, and it is alleged that they had notice of the petition. If they were [1077]*1077agents of Drewry at all, they were so only as to the note. They were merely holders of paper owned by Drewry, and secured on real estate, the legal title to which was in Drewry, a title which could not be affected except by personal notice to Drewry. But even if Isaacs & Co. were agents of Drewry. both as to the note and as to Drewry’s legal title in the seventh interest in Mount Blanc, they bad no notice. They not only are not proved to have bad notice, and did not have notice of the petition for sale, but it was impossible for them to have had it, living as they did in Richmond, a hundred and fifty miles from Danville, where the petition was filed. Even if they had had notice, the notice of one day would have been insufficient and an absolute mockery. The truth is, that no lien creditor had notice of the petition for this sale. It was filed on one day, and the decree granted on the next. Such a decree, without previous notice to lien creditors and without any time allowed them to have got wind of the proceedings, was absolutely null and void so far as it concerned them. Both sales made under this decree, as well the first sale at which F. 6. Claiborne became the purchaser as the second sale under which TV. TV. Keen became the purchaser, and also the decree in confirmation of the resale, and the deed made in execution of it. were null and void as to the seventh interest of Drewry. I am not called upon to speak of its validity as to any other interest; but I will say that since I have come upon the bench in January, 1S74, personal notice to lien creditors and a specific ascertainment of liens and their priorities, have been cardinal prerequisites to sales of real estate by assignees, and it is impossible for me to confirm any sale where they have been wanting. In this case they have been wholly wanting, grossly wanting.
The order of this court made upon the petition of Drewry on the 4th April. 1S72, setting aside the sale as to Drewry’s interest, must therefore stand. There could be no ground of claim for its validity, except the one now urged in Keen’s petition, to wTit, that Drewry allowed two years after the cause of action arose to elapse before bringing his petition to set aside the decree of December 2d, 1S09. But Drewry’s petition was filed on the 18th September, 1871, which was less than two years after the decree of December, 1869, and after the sale of his interest; though more than two years after the decree of sale of August 6th, 1S6S. There is no limitation of time, however, to a petition in a proceeding in bankruptcy. The 2d section of the bankrupt act [of 1867 (14 Stat. 518.)] limits the time for bringing “suits at law or in equity” to two years, but contains no such limitation upon a proceeding in bankruptcy as such. This objection, therefore, does not hold good in the present case.
I have but one other question to consider, and that is, as to the proper manner of trying the rights of all parties contestant, in respect to this seventh interest of Drewry in the Mount Blanc property. Not only is this a question between Drewry’s and Walker’s assignees, but it is alleged that there are holders of liens upon this seventh interest which accrued before Drewry derived this interest from W. C. Claiborne. These lien-ors had nothing to do with the bankrupt, or his assignees, or with the proceeding in bankruptcy. Their interests cannot be affected by a summary proceeding here of any sort They have a right to a full hearing in a plenary proceeding, and must have it if they ask for it I will set aside so much of the decree of the 4th April, 1872, as adjudges the absolute title and interest in that seventh to Drewry, leaving the deed from the assignees as it is, but this shall be without prejudice to the right of Drewry or the assignees to institute a proper proceeding for the authoritative adjudication of that title. The value at issue is large enough to give the right of appeal from the district or circuit court to the supreme court If the right be tested here by petition in bankruptcy, there would be only an appeal to the supervisory jurisdiction of the circuit court, and no appeal would be allowable thence to the supreme court An adjudication of the title in a proceeding in bankruptcy would cut off this right of appeal, and such adjudication mast not be made.
In order to preserve this right to the party who may lose the case in the inferior court, the rights of parties must be adjudicated upon a plenary bill in chancery, brought either in the district or circuit court