Phillips v. Bowdoin

Trippe, Judge. 1. The principle was held in Jones vs. Lellyet & Smith, 39 Georgia, 64, that a judgment against one who goes into bankruptcy may be enforced against propérty on which it has a lien, and which was sold by the defendant before the filing of his petition to be adjudged a bankrupt. 2. But the objection to the enforcement of the judgment in this case is, that the creditor, having proved his claim in the bankrupt court, cannot now assert his lien against this property. How the case would have stood, had the creditor not withdrawn his claim and the proof thereof from the bankrupt court, we do not determine. He did withdraw it by a special order of that court. It does not appear that his judgment had a lien over other creditors on any of the assets of the bankrupt in the hands of the assignee. It is true that he canceled, with the assignee, a contract of sale made with the bankrupt for a livery stable. But only a bond for titles had been given and no purchase money paid. It is also true that a credit for this purchase money was placed on plaintiff’s execution. Why this was done does not appear. It does not seem, from the record, that the purchase money for the livery stable had any connection with the debt on which the judgment against the defendant in execution was founded. The plaintiff, therefore, as the holder of the title to the livery stable, and thus having a lien on it for the purchase money, under an arrangement with the assignee, took back the stable for the purchase money debt. Neither the record shows, nor could counsel in the argument explain, why a credit for the purchase money was put on thej/?./a. The bankrupt court had power to pass the orders allowing the withdrawal of plaintiff’s claim and the proofs, and under these facts, and the reasons shown why the bankrupt court granted the orders, we do not think his right to proceed against this property was lost: Bump on Bank., 434; 3 Bank Reg., 85. [548] 3. After the bankrupt court had granted the orders of withdrawal, compensation to the amount of $18 96 was allowedly the register to the attorneys for plaintiff, for bringing certain assets of the bankrupt into his hands. This was about ten months after the plaintiff’s case was out of that court. Whether this action of the register was legal or not, it cannot affect the right of plaintiff as to the lien on the property levied on. The sum so' allowed is credited on the fi. fa., and to that extent lessens the amount of the debt sought to be enforced against the land claimed -by defendant in error. 4. From this it necessarily follows that when it had been put in proof by the claimant that plaintiff had proved his debt in the bankrupt court, the plaintiff had the right to introduce in evidence an exemplification of the records of that court, showing the proceedings and judgments granting the orders allowing the withdrawal, and there was error in the court’s refusing him this right. Judgment reversed.