54 A. 705 | N.H. | 1903
As against the defendant Locke, the plaintiff company acquired by the attachment a lien upon the property attached for the satisfaction of any execution which they might obtain in the suit. Kittredge v. Warren,
One general purpose of the United States bankruptcy act of 1898 (c. 541) was to distribute the bankrupt's property proportionally among all his creditors. In furtherance of that purpose, the act contains provisions designed to prevent one creditor from acquiring a preference over other creditors through legal proceedings commenced within four months prior to the bankruptcy. In re Kenney, 105 Fed. Rep. 897. Whether the sections inserted for this purpose (67c and 67f) can or not be reconciled with each *24
other, or, if not, which section is to be taken as the expression of the legislative purpose, is not here material. The purpose of each is the same — to secure to the trustee the bankrupt's property discharged of liens so created. Section 67f, under which the defendant claims, provides that liens so obtained "shall be deemed null and void," and that the property so affected "shall be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt." This language is an elaboration of the provision of the bankruptcy act of 1867 that the conveyance to the assignee "shall dissolve any such attachment made within four months next preceding the commencement of the bankruptcy proceedings." R. S. U.S., s. 5044. It was held under this clause that an attachment was not dissolved as against the bankrupt. Sims v. Jacobson,
The defendant further claims that, because of the failure of the trustee in bankruptcy to dispose of the property in question, the title thereto reverts to or revests in him, unaffected by the bankruptcy proceedings, and that he now owns it. Jones v. Pyron,
In a controversy between the plaintiffs and Cavanaugh, neither claiming under the trustee in bankruptcy, evidence as to the bankruptcy would be immaterial. The unasserted right of the trustee, valid as against either or both of the claimants, would not confer any right upon either.
In the present case, whether the trustee in bankruptcy has or had a valid title to the property is equally immaterial and *26
indeterminable. Locke can no more defend this suit by alleging the non-asserted right of the trustee, if once existent, than he could by setting up the equally non-asserted right of the mortgagee. As no title or right to the possession of the property taken from the possession of the sheriff by Locke after the bankruptcy is established in the defendant, judgment was properly ordered against him for the value of the goods so taken, and, his bankruptcy being suggested, against the avails of the attachment in the suit upon the preexisting debt. Batchelder v. Putnam,
Exceptions overruled.
CHASE, J., was absent: the others concurred.