The opinion of the court was delivered,
by Thompson, C. J.The money in the court below arose from a sale on a judgment for arrears of ground-rent against the bankrupt, and also upon a mortgage given by him. It was not pretended that either of these acts was affected by the bankrupt act, but the surplus after payment of them was distributed to subsequent lien-creditors, and it was contended by the assignees,
1st. That a state court could not distribute the fund among the creditors of the bankrupt.
2d. That the judgments to which it was distributed were in fraud of the 35th section of the Bankrupt Law.
As to the last of these objections the auditor fully and completely negatives them by showing that the judgments were not given as preferences, or taken by the several creditors with any knowledge of the insolvency or contemplated bankruptcy of the insolvent. He has not reported the testimony so that this court might see whether he erred in fact on this point or not. The report must therefore be regarded as conclusive as to this.
As to the first of these objections we have held, that a state court having a right to enforce a lien, it has the power to decree distribution, and it follows of course that the assignee must come into court and claim his preference on the fund if he has any, as did the appellants in this case. This view of the point like the last is also against the appellants, and the decree of distribution is affirmed, and appeal dismissed at the cost of appellants.