Tuesley v. Robinson , 103 Mass. 558 ( 1870 )

Gray, J.

The mortgage, though fraudulent and void at against creditors, was good as between the parties. So much of the mortgaged property as is claimed in this action was household furniture of the debtor, exempt by law from being taken by his creditors; was separated from the rest of the property by agreement between the debtor and his creditors, and duly set apart by the assignee as excepted from the operation of the bankrupt act; and the assignee had no interest therein, or authority to call in question the validity of the transfer thereol from the debtor to the plaintiff. U. S. St. 1867, c. 176, § 14. Rayner v. Whicher, 6 Allen, 292. Mannan v. Merritt, 11 Allen, 582. The decree of the district court of the United States, declaring the mortgage fraudulent as against creditors, did not affect its validity as between the parties, or its operation upon property in which the creditors had no rights. The mortgagee has done nothing, by proof of his debt in bankruptcy, or otherwise, to waive his mortgage; and his right to hold the property as security for his debt cannot be affected by the debtor’s discharge in bankruptcy. Judgment for the plaintiff.