138 F. 846 | W.D. Ark. | 1905
The practice covering the presentation of claims of creditors to the referee in bankruptcy for allowance is correctly outlined in the case of In re Eleanor T. Sumner, 4 Am. Bankr. Rep. 124, 101 Fed. 224, and it is needless to copy it here. It is enough to say that no pleadings are necessary except the presentation of the claim, duly verified, in conformity with section 57 of the bankrupt law (Act July 1, 1898, c. 541, 30 Stat. 560 [U. S.
However, in the opinion of the court, the conclusion reached is not decisive of the case. The case, as made by the record, stands in this way: The bankrupt has borrowed the money upon which the bank’s claim is based. His wife has signed the notes, and become the joint maker with the bankrupt, and has executed a mortgage on her separate estate to secure the same (and confessedly the money was borrowed for the bankrupt, and was used by him in his business). In this state it was held in Goldsmith v. Lewine, 70 Ark. 516, 69 S. W. 308: “A married woman may mortgage her separate property to secure her husband’s debts, whether existing or to accrue.” If the wife in this case should be called upon to pay, out of her separate estate, her husband’s debts, she would be entitled to be subrogated to whatever rights the bank has as against her husband’s estate. By section 57i of the bankrupt act it is provided :
“Whenever a creditor, whose claim against a bankrupt estate is secured by the individual undertaking of any person, fails to prove such claim, such person may do so in the creditor’s name, and if he discharge such undertaking in whole or in part he shall be subrogated to that extent to the rights of the creditor.”
It thus appears that by the very terms of the bankrupt act itself, if the bank should fail to prove its claim against the estate of the bankrupt, the wife would have the right to do it in the bank’s name; and, if the bankrupt should probate the claim, the wife would have the right to step in and pay the entire indebtedness of the bank, and be subrogated to the rights of the bank in the estate of the bankrupt.