Wareham Savings Bank v. Vaughan

Devens, J. The execution which issued upon the judgment obtained by the appellant had, before the insolvency, been levied upon certain real estate as that of Lloyd Perkins, but which in fact stood in the name of Almira E. Perkins. It is the contention of the appellant, that the judgment still constituted a debt upon which it had obtained collateral security only; and that, under the provisions of the Gen. Sts. c. 118, § 27, it is now entitled to “ release and deliver up to the assignee the premises held as security and be admitted as a creditor for the whole of his debt.” This position cannot be maintained. . The appellant had received seisin and possession of the real estate set off to it in full satisfaction of its judgment, and the execution had been returned fully satisfied. The judgment did not constitute a debt, at the time of the insolvency, upon which an action could have been brought, nor one that was provable against the estate of the debtor. Dennis v. Arnold, 12. Met. 449. Perry v. Perry, 2 Gray, 326. Gen. Sts. c. 118, § 25. It is true that, if it shall appear hereafter that the real estate of which seisin has been delivered to the appellant cannot be held as the property of the debtor, a writ of scire facias may be brought, and another execution issued upon the judgment, unless cause shall be shown to the contrary. Gen. Sts. c. 103, § 22. But the possibility that such a contingency may hereafter happen cannot make of the judgment a present existing debt. If all that the appellant obtained by its levy be, as it claims, a right to maintain an action for the estate levied upon, it is still an action for its own benefit, which it is thus entitled to maintain because by the levy it has satisfied its judgment. There is no provision for the transfer of such a right to the assignee, nolis real estate thus levied upon to be deemed “ premises held as security ” in the sense of the statute. It is there contemplated that that which is to be released and delivered up is property of the insolvent upon which there is some lien or incumbrance. If this real estate when levied upon was the property of the insolvent, it is now that of the appellant, and the assignee has and 536 can take no interest in it. If the appellant shall by the proceedings it has commenced successfully establish its title thereto, and if the land shall prove to be of far greater value than the amount of the judgment, there is no duty that requires it to account for the surplus to the assignee, as the land was received in satisfaction of, and not as security for, the judgment. Judgment affirmed.