Smith v Stokes: 1801

After a bankruptcy goods belonging to his partnership were received by the defendant Stokes. The commission in bankruptcy then issued. His partner died and his will was proved by Stokes and another. The assignees under the commission then brought an action in trover against Stokes. The action could not be maintained if Stokes as Strickland’s executor was a tenant in common of the goods. Counsel for the plaintiffs contended: ‘The property was originally vested in the two partners as joint tenants, and nothing happened during the life of Strickland to convert their title into a tenancy in common; for he died before the commissioners’ assignment was made, and consequently before the bankrupt laws had attached upon the legal title of the bankrupt so as to destroy the joint tenancy. The act of bankruptcy, which happened before Strickland’s death, could not of itself operate to dissolve the joint-tenancy, or sever the title of the parties, and convert it into a tenancy in common . . The relation back of the assignment to the act of bankruptcy, in order to avoid mesne acts of the bankrupt, is by force of the bankrupt laws, and is quite distinct in its operation from the change of title effected in the property by such assignment, from a joint tenancy in common, which results from the rules of the common law in consequence of the conveyance, and which has no relation back.’
Held: Rejecting the submission, ‘In this case it was not the act of bankruptcy alone that dissolved the joint tenancy, but the act of bankruptcy followed by the commission and assignment. Nothing passes to the assignees till the assignment; but when that is executed, they are in by legal relation to the time of the act of bankruptcy . . This is the essential object of the bankrupt laws, and the uniform operation of them’. The court then referred to the exceptional case under the royal prerogative and continued ‘In all other instances the relation takes place. The effect of it then in this case is, that the assignees became tenants in common by relation from the time of the act of bankruptcy with the other partner in his lifetime, and since his decease with his representatives, one of whom is the present defendant; and then the rule of law attaches, that one tenant in common cannot maintain trover against another’


Lord Kenyon CJ


(1801) 1 East 363


England and Wales


CitedCooper v Chitty 1756
An action of trover was brought by the assignees of the bankrupt against the Sheriffs of London who had taken and sold the bankrupt’s goods under a writ of fi. fa. The debtor committed an act of bankruptcy on 4th. December 1753. On the 5th. December . .

Cited by:

CitedRe Dennis (A Bankrupt) CA 22-May-1995
A joint tenancy was severed (under the former law) on the event of an act of bankruptcy, and not only by the later actual adjudication of bankruptcy. The vesting of the debtor’s property in the trustee which occurred on adjudication was automatic; . .
CitedMorgan v Marquis 2-Nov-1853
The defendants had possession of some flour for sale under instructions from Perrin. The jury found that the sale was to be for the account of Perrin and one Shute and not Perrin alone, and that Perrin and Shute were joint tenants. Perrin committed . .
Lists of cited by and citing cases may be incomplete.


Updated: 07 December 2022; Ref: scu.186748