44 Tex. 384 | Tex. | 1876
This suit was commenced in the District Court of Wharton county in October, 1867, upon a promissory note and to enforce a vendor’s lien. In December, 1868, Philips, the defendant below, assigned his property in bankruptcy, and in May, 1869, L. F. Harris, the assignee, made himself a party. Afterwards Boone, the appellant, intervened and claimed title to the land in controversy by virtue of a purchase from the assignee, Harris. The cause was tried by a jury, and a judgment was rendered for the plaintiff below, with a 'decree for the foreclosure of the vendor’s lien, and Boone has appealed. The only question presented by the assignment of errors which need he noticed in this opinion is in regard to the jurisdiction of the District Court, in exclusion of that of the federal court, under the peculiar circumstances of the cause. And that question was fully considered and definitely settled in the case of Garnett v. Smith, decided at the last term of this
Opinion delivered February 24, 1873.
A rehearing was granted.
On rehearing Long & Long filed an elaborate argument for appellant.
We adhere to the opinion affirming the judgment.
A creditor whose claim is secured by a lien on real estate may enforce his lien, notwithstanding the discharge in bankruptcy of his debtor, and although his claim was not proven up against the bankrupt’s estate.
In the case of Elliot’s Administrator v. Booth and Johnson, supra, p. 180, the decisions on this question were collected and reviewed, and the whole subject was so fully considered as to render its further discussion unnecessary. (See also Assignee of Nicks v. Perkins, 1 Wood, (U. S. C. C.,) 383; Davis v. R. R. Co., Id., 661.)
The jurisdiction of the court below to render the judgment of foreclosure may be upheld, without inquiring as to the power of the bankrupt court to sell free from incum
Whilst the record is somewhat obscure as to disposition made of the plea setting up the discharge in bankruptcy, it is very clear that the court had no intention to give the discharge any further effect than to relieve the bankrupt from personal liability.
There is nothing in the proceedings or judgment of which the plaintiff in error, Boone, can complain, and the judgment is accordingly affirmed.
Affirmed.