Scire facias in 1846, tо obtain an award of execution upon a judgment rendered in February, 1840. Plea, a discharge obtained by the defendant, as a voluntary bankrupt, under the act of congress of 1841, in the District Court of the United States, for the district of Indiana. Replication, that, before and at the time of the alleged decree in bankruptcy, “he, the said Gatewood, defendant, was seized of one equal undivided seventh part of the south east quarter of section 33, in township 13 nоrth, of range 7 east, containing 160 acres, situate in the county of Shelby, Indiana, as follows, to-wit: One John Higbee, bеing seized in fee simple of said tract’ of land, conveyed it, for a consideration, by deed dated May 25, 1833, to one Sarah Gatewood, during her natural life, and to her children and their assigns forever, to have and to hold the said tract of land, to the said Sarah during her natural life, and to her children and their assigns forevеr. And the said plaintiiF avers that said defendant is one of the seven children of said -Sarah," &c. General demurrer sustained to this replication, аnd final judgment for the defendant.
There being no words of inheritance in the conveyance described in the replication, and those used, “her children,” being words of purchase and not of limitation, the rule in Shelley's case does not apply, and a fee simple was not vested in Sarah Gatewood. She took an estate for life, and her children a vested remainder, whether for
The first section of the bankrupt act оf 1841,.provided that “all persons residing,” &c., “owing debts which shall not have been created in consequence of a defalcation,” &c., “or as executors,” &c., “or while acting in any other fiduciary capacity, who shall, by рetition,” &c., may be decreed bankrupts. — U. S. Statutes at Large, Vol. 5, р. 440. In construing this section, the Supreme Court of the United States, Chapman v. Forsyth, et. al., 2 How., say that “the debts hеre specified are excepted from the operаtion of the act;” that “the exception applies to the debts and not to the person if he owe other debts;” that “it was proper that congress should not relieve from debts which had been incurred by a violation of good faith, while from other obligations a full disсharge to the same person should be given,” and “that this considerаtion mfluenced the legislature, is shown by the fourth section, which provides that no person who, after the passage of the act, shall apply trust funds to his own use, shall be discharged.”
This section of the act, then, entitled all persons complying with certain conditions, to be discharged as bankrupts from all their debts except such as were contracted under particular circumstances. It follows, according to established rules of pleading, that a defendant whо relies upon his discharge as a voluntary bankrupt, to defeat a suit brought against him for the recovery of a debt existing at the passаge of the act, must show that that debt is not within the exceptions of the act. See Sackett v. Andross, 5 Hill. (N. Y.) 327.—Stephens v. Ely, 6 id. 607—Varnum v. Wheeler, 1 Den. 331.—Maples v. Burnsides, id. 322. The plea in this case did not show that the debt in question was not an excepted one.
The judgment is reversed. Cause remanded, &c.