137 N.W. 412 | N.D. | 1912
This is an appeal from an order of the district court of Grand Forks county entered September 7, 1910, directing the cancelation and satisfaction of record of the judgment hereafter referred to. Respondent makes no appearance and has filed no brief.
Appellant’s statement of facts is, we think, a fair and correct statement. It is as follows:
“On the 5th day of December, 1902, George A. Wheeler, Sr., died leaving a will by which he bequeathed lots 8, 9, 10, and 11 of Westerman’s & Sheehan’s Ad. to the city of Grand Forks, county of Grand Forks, state of North Dakota, to his wife, Ellen M. Wheeler, for life, remainder to George A. Wheeler, Jr., the defendant in this action.
“On the 4th day of June, 1908, plaintiff recovered a judgment in the above-entitled action against the said George A. Wheeler, Jr., for the sum of $348.44, which judgment was duly entered and docketed on that day, and, until the time of the making and entry of the order from which this appeal is taken, remained of record and undischarged; during all of this period Ellen M. Wheeler resided upon said lots.
“On the 18th day of February, 1909, respondent was adjudged a bankrupt, and on the 21st day of May, 1909, was discharged from all*479 debts provable in bankruptcy which existed on the 19th day of February, 1909.
“In June, 1910, defendant made a motion in the district court of Grand Forks county in the original action brought by appellant as hereinbefore referred to, to vacate and set aside the judgment therein, resting his claim to such relief upon chapter 125 of the Laws of 1905.
“This motion was resisted by the plaintiff, who appeared, and by affidavit set up the facts as hereinbefore stated.
“An issue was also raised by the affidavits offered by respective parties as to the value of the land, it appearing from appellant’s affidavit that the land was worth in excess of $5,000 and by the affidavits of respondent that it was worth less than that amount.
“It also appears from the affidavit offered by appellant that Ellen M. Wheeler, owner of the life estate, was entitled to the possession under the will when the judgment was docketed, while from the affidavits of respondent it might be understood that respondent was in joint possession with her at that time, with her permission, under some kind of an agreement which does not clearly appear.”
Appellant makes the following contents in its printed brief:
“1st. That chapter 125 of the Laws of 1905 was never intended to enlarge the relief granted by the Federal bankruptcy statute, but was simply intended to provide a means to show by the court records what has already been accomplished.
“2d. That the question as to whether or not appellant has a lien upon specific real property of the respondent by virtue of its judgment is not a proper question to be litigated upon affidavits.
“3d. That even though it were conceded to be proper for the court to try an issue of this kind upon affidavits, the court must find as a matter of law that a lien existed upon respondent’s vested remainder in the several lots described, by virtue of the judgment at the time the proceedings to vacate were instituted.”
We are agreed that the first two contentions are sound, and that the order appealed from must be reversed, and will briefly give our reasons therefor.
We take it to be well settled that a discharge in bankruptcy leaves intact all liens except those specially stricken down by the bankruptcy act. As stated in 2 Loveland on Bankruptcy 4th ed. § 749: “The
In the first case cited it is, among other things, said: “The effect of the discharge is personal to the bankrupt, and it does not affect any lawful lien, charge, or encumbrance existing on his property, but judgment may be specially entered thereon in rem. . . . The bankruptcy law was carefully designed to save all liens against property from being affected by the discharge, and its terms seem ample for that purpose.”
In Woods v. Klein, supra, it was said: “No provision of the bankrupt act contemplates that a valid lien, acquired more than four months before the filing of a petition in bankruptcy, shall be vacated by the bankruptcy proceedings, or that the enforcement of such a lien by execution shall constitute an illegal preference. Owen v. Brown, 57 C. C. A. 180, 120 Fed. 812. There is a clear distinction between the bald creation of a lien within the four months and the enforcement of one previously acquired. Thompson v. Fairbanks, 196 U. S. 516, 49 L. ed. 577, 25 Sup. Ct. Rep. 306. The lien that is invalidated by the bankrupt act is one created by a levy, judgment, attachment, or otherwise, within four months. Where the lien is obtained more than four months prior to the institution of the bankruptcy proceedings, it is not only not to be deemed null and void on an adjudication of bankruptcy, but its validity is recognized.”
If the foregoing authorities are sound, and we think they are, it follows that, if the judgment in question was a lien upon any real property of respondent, that such lien is in no way affected by the discharge in bankruptcy, and appellant is entitled to enforce such lien in so far as the proceedings in bankruptcy court are concerned.
But the learned trial court, in making the order complained of, no doubt construed chapter 125, Session Laws of 1905, as authorizing the
Sec. 7082, Revised Codes of 1905, provides that the docketing of a judgment in the district court creates a lien on all the real property, except the homestead, in the county where the same is so docketed, of every person against whom any such judgment shall be rendered. Respondent, through his father’s will, was vested with a title to these lots, subject to a life estate in his mother. Such interest created in respondent a vested remainder, constituting him the owner of real property within the meaning of § 7082, supra, and the judgment attached as a lien thereon unless, as before stated, the same constituted his homestead. Revised Codes 1905, §§ 4769, 4725, and 4729; 17 Am. & Eng. Enc. Law, 2d ed. 783, and cases cited.
Whether respondent could base his homestead right upon such vested remainder we need not here determine, for the obvious reason that the homestead character of real property cannot be determined on affidavits. But see 21 Cyc. 503, and cases cited. Appellant is clearly entitled to have such question tested and determined by an action in court. His remedy is pointed out in the recent case of Klemmens v. First Nat. Bank, 22 N. D. 304, 133 N. W. 1044.
The order appealed from is reversed, and the District Court is directed to reinstate such judgment.