Sumrow v. . Black

87 N.C. 103 | N.C. | 1882

The exception of the defendant, W. J. Black, was well taken. The judgment of the plaintiff against Black and his wife was rendered in 1877. On the 29th of August, 1878, he filed his petition in bankruptcy, and on the _____ day of _________, 1879, was adjudicated a bankrupt and received his discharge from all debts and liabilities existing against him prior to the date of filing his petition, to wit, the 29th of August, 1878.

The plaintiff contends that his judgment having been rendered and docketed before the 29th of August, 1878, created a lien upon the land of the defendant which was not discharged by the adjudication in bankruptcy, and that he had the right to enforce the lien by an execution. This, it has been decided, he has no right to do.

In Blum v. Ellis, 73 N.C. 293, followed with approval by Withersv. Stinson, 79 N.C. 341, and Dixon v. Dixon, 81 N.C. 323, it was held that all the property of the bankrupt, as well as that which is subject to mortgages and liens, as that which is unencumbered, passes to the assignee, and is in custodia legis, to be administered by (106) the assignee subject to liens and priorities, and all claims against the estate of the bankrupt, however evidenced or secured, are required to be proved; and the bankrupt court is the proper tribunal to administer the remedies for the enforcement of liens.

The effect of the adjudication of the defendant's bankruptcy was to give him a final discharge from all previsions debts then provable; and this is so, notwithstanding the plaintiff's name was omitted to be inserted in the sworn list of creditors, and by reason of the omission the plaintiff had no notice of the proceedings in bankruptcy, and could neither prove his claim against the defendant, nor oppose the granting of the discharge. Knabe v.Hayes, 71 N.C. 109.

We therefore hold, that the refusal of the court below to dissolve the injunction as to the property owned by the defendant upon which the plaintiff's judgment had a lien on the 29th of August, 1878, was erroneous, and the judgment in the matter of the injunction must be so modified as to perpetually enjoin the plaintiff from issuing any execution upon his judgment against the defendant, W. J. Black, and his wife, M. A. Black.

Error. Reversed.