Livingston v. Livingston

Headnote

Debts due on judgments docketed previous to the passing of the bankrupt law of the United States, remain a lien on the lands then held by the bankrupt, and have a priority in payment, out of the lands affected by them, before the general creditors, the'commissioners’ assignment passing such lands, subject to all judgments so docketed, if the judgment creditor has not come in under the commission.

On scire facias on a judgment docketed on the 25 th January, 1800.

By the 63d section of the bankrupt law of .the United States, passed on the 25th of April, in the same year, it is enacted, “ that nothing contained in this act shall be taken or considered to invalidate, or impair, any lien existing ax the date of this act, upon the lands or chattels of any person who may have become a bankrupt.” In September, 1802, a commission was issued against the defendant, on which he was declared a bankrupt, and in the November following he obtained his certificate. The plaintiff did not prove his debt, or in any manner come in under the commission.

The question was, whether the lands held by the defendant, at the time of docketing the judgment, passed by the commissioners’ assignment, discharged of that judgment, or whether it remained a subsisting lien paramount all claims of the creditors ?

The English statutes have no provision sjmilar to that in the section stated in the case. The decision in their books are under a law, similar in its regulations to the 31st section of the act of congress, by which judgments, and other debts by record, are put-on a level with simple contract demands. It would be so here, did this section *stand unquali-lied, for then it would, like the English statute, have a retrospective, as well as prospective operation. But the 63d section confines the effect of the act to future judgments, and preserves the lien arising from those previously obtained.

The lien mentioned in the section relied on, contemplates only such as are created by the act of the party, as mortgages and the like, or those of factors, but not those which are induced by effect of law, and obtained in invitum.

Let the 63d section be read immediately after the 31st, and there would be no doubt of its having been designed as a proviso, or saving of the judgment, &c. contained in the 63d section. The position of the clause does not vary its construction. It must be interpreted with a regard to that part of the law to which it was intended to relate.