Obrázky stránek
PDF
ePub

ceedings in bankruptcy and execution levied after the defendant was adjudged bankrupt. The levy was on personal property located on leased premises, and the debtor's landlord notified the sheriff that he claimed the rent due him out of the proceeds of the sale. It was held that the landlord was entitled to his lien for rent. (Barnes' Appeal, 13 N. B. R. 543; 91 U. S. 521; In re Trim v. Wagner et al., 5 N. B. R. 23; 2 Hughes, 355; Fed. Cas. 14174.)

Liens in general.- An assignee in bankruptcy must recognize, as preferred claims, all valid liens against the bankrupt's estate. (Gardner v. Cook, Ass., 7 N. B. R. 346; Fed. Cas. 5226.) Where a creditor has a general lien, and the debtor, on receiving an advance or other accommodation from such creditor, deposits with him a particular security, specially intended or appropriated, or even pledged, to meet such advance or to cover such accommodation, the security is subject not only to a particular lien for the advance or liability, but also to the creditor's general lien. (Sparhawk et al. v. Drexel et al, 12 N. B. R. 450; 1 Wkly. Notes Cas. 560; Fed. Cas. 13204) A creditor may take a decree in rem against property on which he has a lien, notwithstanding his debtor has been discharged as a bankrupt (Stoddard v. Locke et al., 9 N. B. R. 71); and where certain bankrupts are stockholders in a national bank, the bank, being a creditor of said bankrupts, has a lien upon their stock to secure its claim. (In re Bigelow et al., 1 N. B. R. 202; 2 Ben. 469; Fed. Cas. 1395.)

Where partnership debts are outstanding, on which a bankrupt's partner is liable, such partner has a lien on the real estate of the firm until the debts are paid, and to indemnify him in the event of his having to pay them (Thrall v. Crampton, Ass., 16 N. B. R. 261; 9 Ben. 218; Fed. Cas. 14008); and the lien of a factor for money advanced, his commissions and charges, is protected by the bankrupt law (In re Roseberry et al., 16 N. B. R. 340; 8 Biss. 112; Fed. Cas. 12052; sec. 5128, R. S.); and a bank has a lien upon shares of its stock, deposited by a stockholder to secure a particular note, for all notes due from said stockholder to the bank, and this lien is not changed by the subsequent bankruptcy of the debtor (In re Peebles, 13 N. B. R. 149; 2 Hughes, 394: Fed. Cas. 10902); also the state has a lien for a debt due from a contractor for services of convicts, upon the tools and machinery of such contractor used on the prison premises in operating the contract; and such lien is not disturbed by the subsequent bankruptcy of the contractor. (In re Burt & Towne, 13 N. B. R. 137; 12 Blatchf. 252; Fed. Cas. 2209.) Where, upon the credit of a vessel, the charterer of it obtained supplies from a material-man and subsequently went into bankruptcy, and a composition was accepted by his creditors, the material-man's lien on the vessel, though he joined in the composition, was not discharged. (The "Home,” 18 N. B. R. 557; Fed. Cas. 6657.) A bankrupt sold bonds which were in his hands, owned by his sister, and took up a mortgage note with the proceeds and used

the balance himself. He was indebted to his sister at the time and he held other bonds owned by her. These bonds he pledged for his debts. Money was paid to her from time to time during six years following, and this was charged against the interest on the bonds. It was held that the sister was entitled to a lien equivalent to a mortgage lien, and that she was entitled to a decree of foreclosure. (Dewey v. Kelton, Ass., 18 N. B. R. 217; Fed. Cas. 3850.)

A mere promise to pay out of a particular fund, when received, the promisor retaining control over the fund, and no notice being given to the person who is to pay it, does not operate as an equitable assignment or give the promisee a lien on such fund. (Ex parte Tremont Nail Co., 16 N. B. R. 448; Fed. Cas. 14168.) A consignor whose property was sold prior to the bankruptcy and the proceeds mingled with the general assets has no lien or specific claim against the estate. He can only share it with the other creditors. (In re Coan & Ten Broeke Carriage Mfg. Co., 12 N. B. R. 203; 6 Biss. 315; 7 Chi. Leg. News, 260; Fed. Cas. 2915.) Where an agistor kept cattle of the bankrupt for pasturing during the summer and fall months and for some time after proceedings in bankruptcy, and delivered them to the assignee without claiming a lien for the pasturage, who sold them at public auction, the agistor's lien under the state statute was lost or waived. (In re Mitchell, 8 N. B. R. 47; 5 Chi. Leg. News, 271; Fed. Cas. 9657.)

Enforcement of liens in general.- A sale by a creditor of property of a debtor, in his possession and on which he has valid lien, will not be disturbed by the fact that the debtor was insolvent and that the creditor knew that bankruptcy was imminent, provided there was no fraud and the property was sold for a fair price (In re Roseberry et al., 16 N. B. R. 340; 8 Biss. 112; sec. 5128, R. S.; Fed. Cas 12052); but a single creditor, whose debt is secured by a lien on bonds of a greater value than the amount of his debt, cannot be permitted to abandon all remedies open to him for the collection of his debt and claim the jurisdiction of the district court in bankruptcy for the purpose. (In re Johann, 4 N. B. R. 143; 2 Biss. 139; Fed. Cas. 7331.) Land which has been set apart by the assignee as exempt from the provision of the act against which there is a vendor's lien will be sold for the satisfaction thereof (In re Perdue, 2 N. B. R. 67; 2 West. Jur. 279; Fed. Cas. 10975); and a creditor whose lien overrides the exemption of the state law may enforce such lien without asserting his rights on the hearing of the debtor's application in bankruptcy. (Bush v. Lester et al., 15 N. B. R. 36.) Where trust property does not remain in specie, but has been made way with by the trustee, the cestui que trust has no longer any specific remedy against any part of his estate in case of bankruptcy or insolvency, and must come in pari passu with other creditors, and prove against the trust estate for the amount due. (In re King, 9 N. B. R. 140.)

Where liens on the property of a bankrupt are valid, and exceed in

value the real estate incumbered by them, there is no necessity for the exercise of the powers of a bankrupt court. (In re Dillard, 9 N. B. R. 8; 2 Hughes, 190; 6 Amer. Law T. Rep. 490; 21 Pittsb. Leg. J. 82; Fed Cas. 3912.) If the right of a creditor and that of a debtor to redeem property sold under an execution are distinct and independent under the state law, the bankruptcy of the debtor does not affect the right of the creditor. (Trimble v. Williamson, 14 N. B. R. 53.)

Priority of liens.— If liens have been acquired bona fide and are recognized by the state law, they have the same priorities and dignity as though no proceedings in bankruptcy had taken place; and where no action has been taken by the assignee or creditor to deal with the property in the bankrupt court, the state court has jurisdiction to make the lien available. (Reed v. Bullington, 11 N. B. R. 408.) A prior lien gives a prior claim, and the district court may ascertain and liquidate a lien. (In re Winn, 1 N. B. R. 131; 1 Amer. Law T. Rep. Bankr. 17; Fed. Cas. 17876.) Where a certain creditor claims a lien by virtue of a judgment against the bankrupt recovered November 5, 1866, but which was not recorded in the clerk's office until October 16, 1867, and a creditor holds a mortgage executed by bankrupt and recorded April 7, 1867, the mortgage lien has priority over the judgment (In re Lacy, 4 N. B. R. 15; 3 Amer. Law T. 215; 1 Amer. Law T. Rep. Eankr. 226; Fed. Cas. 7970); and if there are two mortgages, and the proceeds of a sale in bankruptcy are sufficient to pay off the first mortgage as well as costs and expenses, the senior mortgagee is entitled to be paid in full the same as he would in a case of a sale by way of foreclosure of the mortgage. (In re Bartenbach, 11 N. B. R. 61; 2 Amer. Law T. Rep. (N. S.) 33; Fed. Cas. 1068.) Liens set up against the proceeds of the sale of a vessel owned by a bankrupt shall be allowed in the order of their dates, except strictly maritime liens, which shall have priority. (In re Scott, 3 N. B. R. 181; 9 Amer. Law Reg. (N. S.) 349; 18 Pittsb. Leg. J. 53; 12 Int. Rev. Rec. 129; 2 Chi. Leg. News, 398; Fed. Cas. 12517.) The owner of a vessel gave a mortgage to A. on one-half of her to secure a promissory note. Subsequently he gave a mortgage to B. on three-fourths of her to secure another note. The vessel was sold, the owner being bankrupt, and the proceeds were not sufficient to pay the second note in full, although the first could be. On the question of the distribution it was held that the mortgage to A. attaches to first and second quarters; mortgage to B. is a first mortgage on third and fourth quarters and a second mortgage on the second quarter. A. to be paid in full from the first quarter (since this was sufficient), and the balance of this quarter to go to the assignee; the other three quarters to be paid to B. (this amount being still insufficient to settle B.'s mortgage in full). (In re Ship "Edith," 6 N. B. R. 449; 5 Ben. 432; Fed. Cas. 4282.)

See also cases under subdivision c of this section.
Effect of proof on liens. See sec. 57.

e. That all conveyances, transfers, assignments, or incumbrances of his property, or any part thereof, made or given by a person adjudged a bankrupt under the provisions of this Act subsequent to the passage of this Act and within four months prior to the filing of the petition, with the intent and purpose on his part to hinder, delay, or defraud his creditors, or any of them, shall be null and void as against the creditors of such debtor, except as to purchasers in good faith and for a present fair consideration; and all property of the debtor conveyed, transferred, assigned, or incumbered as aforesaid shall, if he be adjudged a bankrupt, and the same is not exempt from execution and liability for debts by the law of his domicile, be and remain a part of the assets and estate of the bankrupt and shall pass to his said trustee, whose duty it shall be to recover and reclaim the same by legal proceedings or otherwise for the benefit of the creditors. And all conveyances, transfers, or incumbrances of his property made by a debtor at any time within four months prior to the filing of the petition against him, and while insolvent, which are held null and void as against the creditors of such debtor by the laws of the State, Territory, or District in which such property is situate, shall be deemed null and void under this Act against the creditors of such debtor if he be adjudged a bankrupt, and such property shall pass to the assignee and be by him reclaimed and recovered for the benefit of the creditors of the bankrupt.

[Act of 1867. SEC. 14. That as soon as said assignee is appointed and qualified, the judge, or, where there is no opposing interest, the register, shall, by an instrument under his hand, assign and convey to the assignee all the estate, real and personal, of the bankrupt, with all his deeds, books and papers relating thereto, and such assignment shall relate back to the commencement of said proceedings in bankruptcy, and thereupon, by operation of law, the title of all such property and estate, both real and personal, shall vest in said assignee, although the same is then attached on mesne process as the property of the debtor, and shall dissolve any such attachment made within four months next preceding

the commencement of said proceedings:

[ocr errors]

And all

the property conveyed by the bankrupt in fraud of his creditors shall, in virtue of the adjudication of bankruptcy and the appointment of his assignee, be at once vested in such assignee.]

Invalid mortgages.-If an insolvent debtor transfers his property to another and the latter executes a mortgage thereon to secure a creditor, the transfer may be set aside. (Gibson, Ass., v. Dobie et al., 14 N. B. R. 156; 5 Biss. 198; Fed. Cas. 5394.) And a sale made by a creditor secured by deed of trust, after commencement of proceedings in bankruptcy, without permission of the bankrupt court, will be set aside (Smith v. Kehr, 7 N. B. R. 97; 2 Dill. 50; 6 West. Jur. 451; Fed. Cas. 13071); or a mortgage executed by a bankrupt after commencement of proceedings in bankruptcy may be summarily set aside upon petition of the assignee, without resort to equity (In re Sims, 16 N. B. R. 251; Fed. Cas. 12888); also a mortgage to secure a sale that contains no provisions by which the collections and proceeds of sale shall be applied to the purposes of the conveyance or to the payment of the debt to be secured, or indemnity to be provided, or by its re-investment to augment the trust fund, the want thereof being inconsistent with the alleged purpose of the conveyance, is void as to creditors in bankruptcy. (Smith, Ass., v. McLean et al., 10 N. B. R. 260; Fed. Cas. 13074.) And a mortgage of all the property of a firm and its members, given to secure a loan with which to pay debts due and unpaid, and in anticipation of others soon to mature, for a number of which mortgagee is responsible as surety, is void (Scammon, Ass., v. Cole et al, 3 N. B. R. 100; 1 Hask. 214; Fed. Cas. 12433); as is one given to secure a pre-existing debt, where the mortgagee has reasonable cause to believe that the mortgagor is insolvent; and it is immaterial whether such security is given voluntarily or in pursuance of a previous promise, made when the debt was contracted, and when the debtor was insolvent (In re Graham, Ass., v. Stark et al., 3 N. B. R. 92; 3 Ben. 520; 2 Chi. Leg. News, 73; Fed. Cas. 5676); or a mortgage given to secure a pre-existing debt contracted outside of the ordinary course of business of the debtor (Tuttle v. Truax, 1 N. B. R. 169; Fed. Cas. 14277); or if a bankrupt agrees with a creditor to pay his claim in full on condition that the creditor will agree to a discharge, and after the discharge a note is made for the difference between the claim and the dividend, which the wife of the bankrupt signs and secures by a mortgage on her separate property without knowledge of the agreement, the mortgage and note are void (Blasdel v. Fowle et al., 17 N. B. R. 412); as is also a mortgage given to secure two promissory notes that have been indorsed by mortgagees, the mortgage being given less than four months next preceding the filing of a petition in bankruptcy (Scammon, Ass., v. Cole et al., 5 N. B. R. 257; 3 Cliff. 179; Fed. Cas. 12432); or a chattel mortgage

« PředchozíPokračovat »