7 F.2d 888 | D. Mass. | 1924
This is a petition to review the order of Mr. Referee Hutchings that a certain parcel of real estate, belonging to the bankrupt and subject to two mortgages, should be sold free and clear from all liens except that of the first mortgage. The second mortgage contained a release of dower by the bankrupt’s wife. The second mortgagee contends that the bankruptcy court has no power to free the estate from the lien of the wife’s dower, but does not contest its power to free the estate from any lien which might be imposed by the second mortgage.
The decision of the question depends on the law of Massachusetts. The sixteenth section of chapter 244 of the General Laws provides that, on the foreclosure of a mortgage in which a wife has released her dower, the sale shall bar all right of dower. While a sale by the bankruptcy court is not a foreclosure, it has been held that such a sale accomplishes the same result as a foreclosure sale. Gantt v. Jones (C. C. A.) 272 F. 117.
While that decision was given by the Court of Appeals of the Fourth Circuit, where the provisions relating to mortgages are different from those in Massachusetts, it seems to me that it is an authority in favor of the court’s power in this ease. It is to he noted that the wife herself does not object, but that the objection is made by the second mortgagee. Under these circumstances I affirm the order of the referee.
