Bostwick v. His Creditors ( 1841 )

Mabtkt, J.

delivered the opinion of the court.

This is an appeal from the judgment of the district court overruling the appellant’s opposition to the homologation of the deliberations of the creditors of the insolvent, directing the sale of all the property ceded to be sold on a credit; notwithstanding the opposition of the appellant, who required the sale of the property which was mortgaged to him, should be for cash.

The claim of the appellant as a mortgage creditor results from the transfer of a deed of mortgage given by the insolvent’s wife on certain property with his authorization, to Boatner & Norwood. This, indeed, makes Mm a mortgage creditor of the wife and authorized Mm to proceed by the hypothecary action against the syndic, if the property was in his possession; but did not give him the right to appear in the concurso of creditors, in order to require a sale of the property for cash; for it is only the mortgage creditor of the insolvent who may appear at the meeting and demand a sale of the mortgaged premises for cash. The meeting of the creditors has no direction to give as to the manner of selling property, mortgaged by other persons than the insolvent; although it may make part of what he has surrendered. The opposition was properly overruled.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs.