Blake v. Bigelow

*438 By the Court.

Warner, J.

delivering the opinion.

In Blake vs. Irwin, 3 Kelly, 345, we held the interest which Edmund Blake took under this marriage contract, was not liable to be seized and sold by the sheriff, under an execution at Law, and could only be reached by his creditors in a Count of Equity. The complainants, as judgment creditors, have now filed their bill to subject this equitable interest to the payment of the judgments. It appears, on the face of the bill, that Blake has obtained his certificate of bankruptcy, since the rendition of the judgments against him. The defendants demurred .to the bill, in the Court below, for want of equity, which demurrer was overruled. Whereupon the defendants excepted, and now assign for error'here : First, because the Court erred in ruling and deciding that the said act of bankruptcy did not discharge said Edmund Blake from said debts. Second, because the Court erred in deciding that the lien of the judgments of the complainants on said equitable interest, was still subsisting and binding on said property, notwithstanding said Act of Bankruptcy, and said Blake’s certificate of discharge thereunder. Both these grounds will be considered together.

[1.] The 4th Section of the Bankrupt Law of 1841, provides that every bankrupt who shall comply with the requisitions of that law, shall be entitled to a full discharge from all his debts, (unless a majority of his creditors shall file thoir written dissent thereto,) and a certificate thereof shall be granted to him by the proper Court accordingly, and that such discharge and certificate, when duly granted, shall, in all Courts of Justice, be deemed a full and complete discharge of all debts, contracts, and other engagements of such bankrupt, which are provcable under this Act, and shall a.nd may be pleaded as a full and complete bar, to all suits brought-in any Court of judicature whatever, and the same shall be conclusive evidence of itself, in favor of such bankrupt, unless the same shall be impeached for fraud, &e. The second section of the Act excepts from its operation the lawful rights of married women, or minors, or any liens, mortgages, or other securities on property, real or personal, which may be valid by the laws of the States, respectively.

The certificate of the bankrupt is made conclusive evidence *439 in all Courts of Justice, of a full and complete discharge of all debts, contracts, and other engagements of the bankrupt, unless impeached for fraud, &c. A judgment is a debt of record, and consequently the defendant, Blake, was discharged from the payment of all judgments obtained against him, prior to his obtaining his certificate of bankruptcy. By the laws of this State, however, judgments create a Ken on the property of the defendant, from, their date, and are within the exceptions of the Bankrupt Act. Did the judgments obtained against Blake, prior to his discharge, create a lien upon the equitable interest held by him under the marriage contract, now sought to be subjected by the [2.] complainants? A judgment creditor does not obtain •a.specificlien upon the equitable estate of the debtor, by the retiu-n of an execution unsatisfied, but by the commencement of a suit in Equity, after the execution has been -sq returned. Edmeston vs. Lyde, 1 Paige’s Ch. Rep. 637. Weed vs. Pierce, 9 Cowen’s Rep. 728. Hendricks vs. Robinson, 2 Johns. Ch. Rep. 312. Inasmuch as the judgments against Blake were obtained before his certificate of bankruptcy, and do not create any specific lien, upon the equitable interest held by him, under the marriage contract, which this bill seeks to subject, we think the Court below erred in its judgment, in overruling the demurrer on the grounds as stated in the bill of .exceptions.

In disposing of this case, we have been somewhat embarrassed by an amendment which has been sent up with the record. The counsel for the plaintiff in error insists that it was offered after the judgment of the Court overruling the demurrer; and has never been allowed by the Court. "While the counsel for the defendant in error contends it was offered and allowed by the Court to be incorporated as a part of the original bill. There is an acknowledgement of service of the amendment, by the Solicitors of Blake and wife, with the following reservation : “ Not admitting the legality of said amendment, nor the right to amend at this time.” On looking into the record, we do not find any order of the Court, authorising the amendment to be made. We shall therefore remand this case back to the Court below, with instructions to order the bill to be amended, as'the complainants shall be advised, without prejudice to the lights of the defendants.