No. 465 | D. Mass. | Feb 2, 1899
De Lue was adjudicated bankrupt on his own petition, filed December 21, 1898. His trustee seeks to enjoin the sale of his real estate on execution, and to dissolve the lien created by the attachment thereof. The suit in which the execution was obtained was begun in December, 1897. No attachment was made therein until November 2,1898, when an attachment of the real estate in controversy was made by virtue of a special precept issued in accordance with Pub. St. Mass. c. 161, § 85. The application for the precept was made upon the day on which it was issued. The levy was made December 19th, the notice being posted on that day. Section 67c of the bankrupt act reads, in part, as follows:
“A lien created by or obtained in or pursuant to any suit or proceeding at law or in equity, including an attachment upon mesne process or a judgment by confession, which was begun against a person within four months before the filing of a petition in bankruptcy, by or against such person, shall be dissolved by the adjudication of such person,” etc.
The date put in question by this provision is not the date at which the lien was created, but the date at which the suit or other proceeding was begun in which the lien was obtained. The counsel for the petitioner contends that this suit or proceeding is to be taken to be the application for the special precept, and not the principal suit. The construction contended for, as it seems to me, is strained and unnatural. The act does not look to the date of the petition or other proceeding which is specially related to the attachment (the petition