143 Ga. 734 | Ga. | 1915
This is a claim case, and was tried by the judge upon an agreed statement of facts, from which the following appears: In January, 1910, J. A. Busby was adjudged a bankrupt. On April 20, 1910, the bankruptcy court set aside to him, as an allowance for a homestead exemption, certain property consisting mainly of a stock of merchandise, which exemption comprised his entire estate. The Baltimore Bargain House was listed as a creditor of the bankrupt, and duly proved its claim before the referee. No dividend was paid to creditors, and no discharge of the bankrupt has ever been granted. To the July term, 1913, of the superior court of Lincoln county the Baltimore Bargain House filed a suit against the bankrupt. No plea of any kind, nor any suggestion of bankruptcy, was filed by the defendant; and at the October term, 1913? a judgment was rendered for the plaintiff. Ex
Under the former bankruptcy act (1867), this court distinguished the effect and operation of an adjudication in bankruptcy upon liens existing at the time of the adjudication, and those subsequently obtained pending the bankruptcy proceedings. Where the creditor’s lien existed at the adjudication in bankruptcy, it was held that the allowance of an exemption by the bankruptcy court exempted the property from the operation of such lien. Ross v. Worsham, 65 Ga. 624; Brady v. Brady, 71 Ga. 71; Dozier v. Wilson, 84 Ga. 301 (10 S. E. 743). But where pending the suit the defendant was adjudged a bankrupt, and thereafter, but before final discharge, a judgment was rendered in the suit, there having been no plea or suggestion of bankruptcy, such judgment could subject the exemption which was set apart to the bankrupt but was not exempted under the State laws. Adams v. Dickson, 72 Ga. 846. After a debtor has been adjudged a bankrupt and property has been allowed him by the referee as an exemption in bankruptcy, and it has been delivered to him by the bankruptcy court, he is as much at liberty to sell and dispose of it as he would have been at any time prior thereto; or he may apply to the State court and have the exempted property set apart as a homestead. Pincus v. Meinhard, 139 Ga. 365 (77 S. E. 82). The adjudication in bankruptcy does not discharge the liability of the bankrupt to his creditors. Pending the bankruptcy proceedings and before discharge, he may plead to any suit pending at the time of his adjudication, or subsequently brought, a suggestion of the bankruptcy proceedings, and ask a stay in the State court until the question of his discharge has been finally determined in the bankruptcy court. He can not abandon his bankruptcy proceeding after receiving all of his property as an exemption, and defeat his creditor from pursuing that property, where he does not have the exemption allowed in the bankruptcy court set apart as a homestead in the State court. The defendant, when he was sued by his creditor, had two courses
Judgment reversed.