7 Watts 84 | Pa. | 1838
The opinion of the Court was delivered by
Shaeffer and Schofield would not be debarred from the fruit of Muma’s judgment by the supposed inability of his surviving trustee to pass the ownership of it. The assignees of an insolvent debtor must not be restrained by any thing less than express enactment, from making the most of his effects ; and they may consequently dispose, at discretion, of a doubtful security, at a price supposed to be a fair one, though less than the nominal value. To preclude them from benefiting the fund by the temporary rise of a depressed article, for instance, in the stock market, would be a senseless deprivation of chances that might fall in their way. If, however, they are to be postponed for other reasons, the error in this respect cannot be material; and it is therefore necessary to advert to the question of priority at the time of the sale. When Rauch, the debtor, was discharged, the judgments against him still retained their liens ; and these are supposed to have been indefinitely prolonged by the twelfth section of the act of insolvency, passed in 1814, which provides that the land and goods shall remain subject to existing jiens by mortgage, judgment or execution ; and it is certain that when the land is instantly converted, incumbrances are to be first paid in the order of their priority. The clause however is not a creative, but a protective one. Its-purpose is not to enlarge, but to preserve. The conversion of an insolvent debtor’s land seldom follows the assignment with the rapidity of a sale, after seizure on execution ; and the same inconvenience is experienced from stale liens by purchasers and creditors, whether the title be vested in trustees or retained by the debtor. At the date of the act of 1827, then, the liens had expired, and the assignees held the land discharged and for the benefit of the general creditors ; and how can that act be suffered to impinge on an intermediate conveyance by the doctrine of relation ? Its object was avowedly to continue liens then in force, not to restore those that had lost their hold ; for it could not continue what did not
Judgment affirmed.