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Opinion of the Court.

by the defendant adversely to the supposed right of the assignee; and that the right, if any, of the assignee, was barred by the two years' statute of limitation, before the purchase by the plaintiff.

In Wisner v. Brown, 122 U. S. 214, it was held that an assignee in bankruptcy cannot transfer to a purchaser the bankrupt's adverse interest in real estate in the possession of another claiming title to it, if two years have elapsed from the time when the cause of action therefor accrued to the assignee; and that the right of the purchaser in such case is as fully barred by the bankruptcy statute of limitation as is that of the assignee. In that case, the suit was brought by a person who had purchased property of the estate from the assignee in bankruptcy, and received a conveyance thereof, more than seven years after the title of the assignee accrued. The defendants pleaded the two years' bankruptcy statute of limitations. At the time of the appointment of the assignee the property sued for was held adversely by the defendants. The court held that the assignee could not, after two years from the time of his appointment had expired, himself bring an action to recover the property, or, by selling the lands to a third person after such time had expired, enable the latter to maintain an action therefor; and it quotes with approval the remark made in Gifford v. Ielms, ( supra, ) that the purchaser from the assignee did not acquire by his purchase any greater rights than those possessed by the latter.

These cases show that a conveyance by the assignee in bankruptcy cannot prevent the operation of the bar of the statute against the grantee, when it has already run against the assignee, or bring into action a new period of limitation, dating from the time of the conveyance. Nor can it interrupt the running of the statute against the claim or right, when it has once commenced to run as against the assignee. The purchaser takes the right cum onere, subject to the continuance of the running of the statute, and subject to the fact that a part of the two years has already run as against the claim or right, while it was in the hands of the assignee, and to the consequence that when sufficient additional time shall

Opinion of the Court.

have run against it, in the hands of the purchaser, to make up the entire two years, the claim or right will be wholly barred. No initiation of a new period of limitation, under any statute, begins to run in favor of the purchaser at the time of his · purchase, whether the two years wholly elapsed, or only a part thereof elapsed, while the claim was owned by the assignee.

But the plaintiffs seek to take the case out of the bar of the statute, by alleging that they were ignorant of their rights, and did not discover the facts relating to the sale by Peabody as trustee, and the other matters set up in their supplemental bill, until the 24th of April, 1880, which was within two years of September 17, 1881 ; and that the sale by Peabody was kept secret by the defendants, as far as possible, although the plaintiffs used diligence to discover the facts.

Even if the allegations in the supplemental bill and in the amendments thereto be regarded as sufficiently charging a fraudulent concealment by the defendants of the facts of the case, from the assignee in bankruptcy, or from Pratt, or from the plaintiffs, we do not think the evidence establishes any such fraudulent concealment.

With the petition in bankruptcy, filed August 31, 1878, there was filed a schedule naming the creditors of Robertson holding securities, giving the name of David R. Greene as one of such creditors, his place of residence, the date of the contracting of his debt, its amount, a statement that the security was a trust deed on property in Chicago, a description of such property, the street and number where it was situated, and the name of Peabody as trustee. It also disclosed the fact that the only incumbrance on the property was the trust deed to Peabody, thus excluding the idea that the trust deed to Gallup was in force.

Here was information, accessible to the assignee in bankruptcy when he was appointed, information which he was bound to take notice of, information equally accessible to the plaintiffs, being in a public record, which information referred the assignee and the plaintiffs to David R. Greene for full particulars as to the property in question, and the transactions in regard to the trust deed. The petition in bankruptcy was

Opinion of the Court.

filed thirty-seven days before the sale of the property to Greene by Peabody as trustee. Moreover, in the petition of the plaintiffs, filed in the bankruptcy court October 5, 1878, two days before the sale by Peabody, and sworn to by the agents of the plaintiffs, the contents of the schedules in bankruptcy of Robertson are referred to, and it is stated that among the assets set forth in such schedules is the property in question, identifying it. This shows that information was actually had by such agent, at that time, of the facts before set forth as contained in one of such schedules, as to the particulars of the trust deed to Peabody, and as to who was the holder of the note secured by it and where he resided. That petition was filed more than nine months before the assignee in bankruptcy was appointed.

The rights of the plaintiffs must depend wholly upon such right of redemption as existed in Robertson, and passed to his assignee in bankruptcy, and from the latter to the plaintiffs. That being extinguished, no other right exists, and the plaintiffs have no right to redeem through any separate title acquired under their judgment against Robertson. They did not become, by the recovery of their judgment, or by anything done under it, the successors of Robertson in respect of any right of redemption, but they must follow and acquire their only title to such right, through the assignee in bankruptcy. Moreover, whatever right to redeem they could have acquired by virtue of their judgment was waived by them by their petition of March 25, 1880, to the bankruptcy court, and by their procuring the property in question to be sold by the assignee in bankruptcy, and its proceeds to be applied on their judgment. At their own suggestion the equity of redemption, which was sold by the assignee, was thus put beyond their reach. The result of these views is that the decree of the Circuit

Court must be reversed, and the case be remanded to that court with a direction to enter a decree dismissing the bill, with costs.

Opinion of the Court.

MOGILLIN V. BENNETT.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR

THE

NORTHERN DISTRICT OF ILLINOIS.

No. 146. Argued December 5, 6, 1889. - Decided December 16, 1889.

A contract between the parties as to the sale of, and payment for, a ranch

and cattle, interpreted as to the mode of payment provided for. Where a defendant, on a trial, introduces, under the objection of the plain

tiff, parol evidence of what occurred in negotiations between the parties prior to the making of a contract between them, with a view to the construction of the contract, he cannot on a writ of error to review a judgment against him, allege as error the admission of such evidence.

The case is stated in the opinion.

Mr. S. V. White (with whom was Mr. Charles W. Gould on the brief) for plaintiff in error.

Mr. J. B. Johnson and Mr. Charles E. Pope (with whom were Mr. John L. Peak and Mr. A. McCoy on the brief) for defendants in error.

MR. JUSTICE BLATchford delivered the opinion of the court.

This is an action at law, brought in the Superior Court of Cook County, Illinois, by Milton H. Bennett and Robert L. Dunman against Edward M. McGillin, and removed by the defendant into the Circuit Court of the United States for the Northern District of Illinois. The suit was brought to recover the sum of $108,150, with interest at six per cent per annum from the 15th of July, 1885. The defendant pleaded the general issue and sundry special pleas. The plaintiffs demurred to the latter, the demurrer was sustained, and leave to amend the pleas was denied. There was also a plea of set-off, to which there was a replication, joining issue; and there was a similiter to the plea of the general issue. On the written waiver of a jury, the case was tried before the court, which found the issues for the plaintiffs, and also made special find

Opinion of the Court.

ings, and assessed the damages of the plaintiffs, at $115,580.55; for which amount, with costs, judgment was entered in their favor. To review that judgment, the defendant has brought

. a writ of error.

The suit was founded on a written instrument, dated April 16, 1885, a copy of which, as set out in the first count of the plaintiff's declaration, is contained in the margin.i

1 “Know all men by these presents that we, Milton H. Bennett and Robert L. Dunman, composing the firm of Bennett and Dunman, for and in consideration of the sum of four hundred thousand dollars, to be paid as hereinafter provided, have this day sold, and do by these presents sell, transfer, assign and convey, unto Edward M. McGillin, of Cleveland, State of Ohio, the following-described personal property, to wit:

“All our ranch, cattle, horses, wagons, mules, hogs and ranch outfit, located in the Indian Territory, at or near the junction of the Arkansas and Cimaron Rivers, and more particularly described as follows, to wit, twelve thousand and five hundred head of cattle, to be counted, and averaging in age and sex about as follows: Three thousand head of three, four and fiveyear old steers; three thousand head of two-year olds, mixed; five thousand head of one-year olds, mixed; and fifteen hundred head of cows and bulls, calves born in 1885 not to be counted; all of said cattle being branded in one or more of the following brands, to wit: "[Here follow the brands.] “One hundred and twenty-five head of horses, branded in one or more of the above-described brands, and all the mules, wagons, harness, hogs and ranch outfit located on their said ranch and used in connection therewith, and all their right, title and interest in and to the above-described brands; also all their right, title and interest in and to a certain lease for one hundred and twenty-eight thousand acres of land, known as the Cherokee lease, dated October, 1883, and running five years from date thereof, at a yearly rental of two and one-half cents per acre; also all their right, title and interest in and to a certain lease for one hundred and twenty-seven thousand and two hundred and sixty-five acres of land, known as the Pawnee lease, dated June 1, 1884, and running five years from date thereof, at a yearly rental of three cents per acre, and if the Cherokee Stock Association shall get their lease extended we guarantee an extension of said lease on same terms and at the same prices secured by other members of said association; also three good ranch houses, three good corals, corn-cribs, stables, blacksmith shop, and everything used in operating said ranch; also twentytwo and one-half miles of wire fence, Glidden wire, four strands, and nearly all black walnut posts, and one horse pasture, two miles square, near ranch headquarters, to be fenced and completed; to have and to hold the said property above-described unto him, the said Edward M. McGillin, his heirs and assigns, forever.

“We agree to deliver possession of all the above-described property to

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