Clark vs. Warren. Spicer and Wilkinson, and that the estate of the latter was entirely solvent; defendant denies all information of the payment of the notes secured by the mortgage held by the Costers by complainant, except as charged in his bill, but supposes the same may be true; defendant admits the insolvency of Spicer's estate. By agreement of the parties the case was submitted to the decision of the presiding judge upon the bill and answer of the defendant, without the intervention of a jury, who decided that the complainant was not entitled to the relief prayed for, and dismissed the complainant's bill, whereupon the complainant excepted. There can be no doubt that as between the original joint promissors in the notes given to the Costers for the land which the mortgage was given to secure, and their legal representatives, that the doctrine of legal or equitable contribution would be applicable, but that is not the question presented by the record before us. The question as presented by the record is whether the payment of the entire mortgage debt by one of two joint and several promissors, who were primarily liable for the payment thereof to the mortgagees, can equitably compel a purchaser of a part of the mortgaged land from one of the mortgagors, to contribute to the other mortgagor out of the land so purchased by him the one-half of the mortgage debt, when such mortgagor was primarily liable to pay to the mortgagees the entire mortgage debt? If Wilkinson and Spicer, after having given their joint and several notes to the Costers for the land, and executed a mortgage on the land to secure the payment thereof, had afterwards sold the entire tract so mortgaged to the defendant, Warren, and received payment therefor from him, and Wilkinson had paid off the entire mortgage debt to the Costers, for which he was jointly and severally liable to pay, what equity would he have had against Warren, the purchaser, to compel him to reimburse him, Wilkinson, out of the land so purchased because he had paid Spicer's share of the mortgage for which he was jointly and severally bound with Spicer to the mortgagees, to pay? Having sold the land Clark vs. Warren. to Warren and received payment therefor, Wilkinson and Spicer, or either of them, would have been morally and equitably bound to have paid off the mortgage debt, so as to have protected the purchaser of the land from the mortgage. The fact that the land was divided between the joint owners by mutual consent, and part thereof sold by one of the joint owners, does not alter or change the principle involved; both the joint and several promissors were morally and equitably bound to pay off and discharge the mortgage debt for the protection of a purchaser of a part of the mortgaged property, as well as a purchaser of the whole of it. But there is another obstacle in the way of the complainant. The land was purchased by the defendant, Warren, in the spring of 1853. The complainant's alleged equity is that he paid for his intestate, as a joint promissor on the notes, the sum of $2,686 45, as Spicer's share, on the 5th day of December, 1859. The defendant denies all information as to that payment, except as furnished by complainant's bill, and could not have had any knowledge of it at the time of his purchase of the land, for the simple reason that the payment was not made until five or six years thereafter. It is true, the defendant had constructive notice of the mortgage, but at the same time had notice that the mortgage debt was the joint debt of Spicer and Wilkinson, and that the estate of the latter was entirely solvent. The defendant, therefore, had no notice of the complainant's alleged equity at the time he purchased the land, in the spring of 1853. This is not an attempt of the mortgagees, or of an assignee of the mortgagees, for a valuable consideration, to collect the mortgage debt out of the mortgaged property, but it is an attempt by one of the mortgagors to collect out of the purchaser of a part of the mortgaged lands sold by one of the mortgagors, a debt which he was legally bound to pay to the mortgagees as a joint promissor, on the alleged ground that the land in the hands of such purchaser is charged with the burden of paying one-half of the mortgagor's joint and several liability to pay his own mortgage debt, of which payment by the complainant the defendant had no knowledge at the time Bush vs. Lester et al: of his purchase of the land, and could not have had any, because no such payment had then been made. In view of the facts of this case as disclosed in the record, we are of the opinion that the defendant, Warren, the purchaser of the land, has the superior equity as against the complainant, and that there was no error in deciding that the complainant was not entitled to the relief prayed for, and in dismissing his bill. Let the judgment of the court below be affirmed. 55 579 WILLIAM W. BUSH, plaintiff in error, vs. GEORGE H. LES TER et al., administrators, defendants in error. · 1. Discharge in bankruptcy does not affect the prior lien of a judgment upon 2. The land is protected from levy and sale under the judgment, to the same Bankrupt. Judgments. Homestead. Before Judge POTTLE. Oglethorpe Superior Court. October Term, 1875. Reported in the opinion. JOHN C. REED, for plaintiff in error. R. TOOMBS, for defendants. BLECKLEY, Judge. 1. By the laws of Georgia a judgment has a lien from its date upon all the property of the defendant: Code, section 3580. Is this lien extinguished by the defendant's discharge in bankruptcy? This court has ruled that it is not: Jones vs. Bush vs. Lester et al. Lellyett & Smith, 39 Georgia Reports, 64; Phillips vs. Bowdoin, 52 Ibid., 544; Barber vs. Terrell, 54 Ibid., 146. Several other cases decided by the court tend to show that judgment liens which attached prior to proceedings in bankruptcy, are unaffected, unless the creditor has proved his claim, or the property sought to be reached has been taken charge of by the assignee and administered free from liens, in the manner provided for by the bankrupt act: 40 Georgia Reports, 257; 43 Ibid., 383; 44 Ibid., 133; 52 Ibid.,.593. Comparing these cases with 49 Georgia Reports, 361, 52 Ibid., 605, and 53 Ibid., 208, it will be seen that the lien of a judgment has been regarded by this court as on as high grounds as that of a mortgage. Both classes of liens seem to have been considered as equally within the saving provisions of the 20th section of the bankrupt act, and as adhering to the property in any and all hands, even those of the assignee. In one of the cases cited (40 Georgia Reports, 257,) the court say that title passes to the assignee, but he takes it subject to the lien; and in another (43 Georgia Reports, 383,) they say the lien is preserved, and it is at the option of the plaintiff to proceed with his execution or go into the bankrupt court and prove his debt. The assignee may compound for a release of the lien, or he may sell subject to it, or, by an order of his court to that effect, may sell free from it. But if he sells without compounding or obtaining the requisite order, the lien, if not in some way waived, will still bind the property: Meeks vs. Whatley, 10 Bank Reg., 498. See, also, as to lien for taxes, even where there was an order to sell free from incumbrances, and the assignee sold accordingly: 46 Georgia Reports, 412. In the present case the contest is between a judgment creditor and a mortgagee. The judgment bears date in 1867, and the mortgage in 1871. The debtor was adjudicated a bankrupt upon his petition filed on May 22d, 1873, and was thereafter duly discharged. His assets paid nothing to creditors, all his property having been allowed to him as exempt. Neither of the parties to this litigation proved in bankruptcy, Bush vs. Lester et al. though both had the prescribed notice of the proceeding. The mortgage was foreclosed in the state court at October term, 1873, and under that foreclosure the land was sold by the sheriff. The money thus brought into court, amounting to $2,050 00, is the subject matter of the present controversy. The mortgage was given to secure purchase money, or what the parties agreed to consider as purchase money. Before the proceedings in bankruptcy, this land was set apart to the debtor as a homestead, under the constitution of 1868. The same land was returned in his schedule and claimed as exempt in bankruptcy. There was no objection filed by creditors, and the land was allowed to him, in due form, as exempt, before his discharge was granted. There was no irregularity in allowing the exemption or in the discharge. The sheriff's sale under the mortgage fi. fa. took place after the proceedings in bankruptcy were completed, and so far as appears, without any resistance or objection on the part of the bankrupt. 2. A distinction is sought to be drawn between enforcing a judgment, after bankruptcy, against property never in any way dealt with by the assignee or by the bankrupt court, and enforcing it against property set apart in due form to the bankrupt as exempt, whether exempt legally as against such judgment or not. This latter is said to be administered in bankruptey, and the former not. The distinction is unsound in so far as it is applied to exemptions measured by the state laws, and of that class is the exemption of land. The assignee acquires no title and imparts none to the bankrupt. He admeasures or values, and allows the bankrupt to retain. The latter has precisely the same title after his exempt property is set apart as he had to it before. Liens upon it are neither extinguished nor removed. His protection thereafter, as to those liens, unless he can show assets for them in the hands of the assignee, depends wholly on the state law. What has been done by the assignee is equivalent to compliance with the state statutes in assigning homestead or claiming exemption, but has no higher validity or greater sanctity. If creditors come who have compounded their liens with the as |