This action was brought to recover the amount of a promissory note, made by the defendant. Judgment was recovered in it by default, on the 6th day of July, 1866. Upon a motion, afterward made, the defendants secured leave to answer, but the judgment was permitted to stand as security for the plaintiff’s demand. The answer was served on or about the 13th of November, 1867, and the defendant was discharged as a bankrupt, on the 26th of October, 1868. In February, 1871, a trial was had on the issue joined by the answer so served, and a verdict recovered by the defendants, which was set aside by the justice holding the circuit. As the cause was about to come on for trial again, and on the 12th of June, 1874, an order was procured on the part of the defendant, for the plaintiff to show cause, why he should not be allowed to set up Ms discharge, by way of supplemental answer. And upon the hearing of the motion, the order appealed from was made, allowing that to be done, without prejudice to any lien the plaintiffs had upon any real estate, under and by virtue of their judgment standing as security. This reservation seems to have been made in view of the protection given to creditors’ liens upon the bankrupt’s property, by virtue of section 20 of the bankrupt act.* That section secures to the creditor the benefit of a legal lien, although
Both objects mentioned in the order, cannot be attained by means of its provisions. The discharge of the debt must abrogate the lien which the judgment has created for its payment. For, without the debt, there can be no judgment. If this result had been manifested when the order was made, it would probably have been refused ; because the court seems to have been actuated with the purpose of first securing the plaintiffs the full benefit of the lien acquired by virtue of their judgment, and, after that, allowing the defendant to avail himself of his discharge. This was in harmony with the equity maintained by the section of the bankrupt law, already cited. And it would have preserved the substantial rights of both debtor and creditors, if it could have been rendered successful. But, as both results cannot be secured, the order ought not to be allowed to stand; particularly as the affidavit of the plaintiff’s counsel affirms the lien to be on sufficient property to pay the entire amount of the debt. It would contravene the policy of the bankrupt law, to allow the discharge to be made use of in such a way as to defeat the security afforded by means of a lien, which, if properly enforced, would result in satisfying an honest debt. There is no justice in depriving the creditors of the lien which they have acquired by their diligence, as long as the act under which the defendant procured his discharge, has provided for its protection and satisfaction out of the debtor’s property. And
An attempt by way of excuse was made in the affidavit, by which the motion in this case was supported. But it was of so lame and impotent a character, as to deserve no serious consideration. It conceded the neglect, and endeavored to excuse it by information derived from the clerk of the defendant’s attorney. Under the circumstances of this case, the defense proposed, would be improper and unjust. It would have the effect of defeating the security for the plaintiffs’ debt, fairly and lawfully acquired, which the design and policy of the bankrupt law entitled them to enforce. And it would award to the defendant that relief, which, by his negligence, he has deprived himself of all rights to demand.
Davis, P. J., and Lawrence, J., concurred.
Ordered accordingly.
*.
Vol. 14, U. S. Statutes at Large, 526.
*.