Bray v. Aikin , 1884 Tex. LEXIS 30 ( 1884 )

Delany, J. Com. App.

Our opinion is that the first assignment of error cannot be maintained. Appellant assigns as error the ruling of the court “ in refusing to permit defendants to prove by W. B. Aikin and his attorney, H. D. McDonald, that plaintiff had proven up his entire claim against J. H. L. Bray in bankruptcy, after having offered preliminary proof of the loss (by fire) of the records and papers of the register in bankruptcy, and after admitting evidence that the claim had been filed in the office of S. J. Newton, register in bankruptcy, with an affidavit attached,” etc.

Objection was made that this evidence was secondary and that no sufficient proof had been made of the loss of the primary and better evidence. Both parties treated the evidence offered as secondary, and the defendants, in order to show the loss of the original papers, proved by the witness, Wright, that the court building in Tyler, which contained papers, etc., had been burned; that upon inquiry at the office he found that a great many of the records, and nearly all of the papers of the office, were missing, and was told by the clerk that they had been burned.

Bo inquiry, however, was made for the papers here in question, nor was there any evidence of their. destruction. Inquiry should have been made for these particular papers, and, if they were lost, the loss should have been proven by the proper custodian of the papers, if he could be found.

In the case of Dunn v. Choate, 4 Tex., 14, where a copy of a deed was offered with proof that the original had been in the hands of a person who said it was lost, the court said that this was not sufficient. The loss should have been proven by the testimony of the person who had possession of the deed, if he could be found.

The second assignment complains of the ruling of the court in excluding from the jury, after it had been read, a transcript from the proceedings of the bankrupt court, in which it was shown that, in a proceeding between Bray and the assignee, the latter had been ordered by the court to set aside to Bray as his homestead the land now in controversy.

Our opinion is that the court did not err. Long before the proceedings in bankruptcy commenced, the plaintiff in this suit held a valid lien upon the property.

If the assignee did set aside this land as the homestead of the bankrupt, the latter would, nevertheless, take it subject to the lien.

“ When property claimed to be exempted is subject to a mortgage, the assignee will discharge his whole duty if he designates the exempted property, and then leaves the bankrupt and the mortgagee to settle their respective rights by themselves.” In re Lambert, 2 B. R., 426; Bump on Bankruptcy (10th ed.), p. 519.

In his answer the defendant had charged that the sale made by Wortham, trustee, to the plaintiff, and under which the plaintiff here claimed the property, was void, because it was made after Bray was adjudged a bankrupt.

The court sustained an exception to the answer. This ruling is presented in the third assignment of error.

Under this assignment appellant presented the following proposition : “ The trustee’s sale made by J. D. Wortham, after Bray was adjudged a bankrupt, was without right, null and void, and conferred on Aikin, the purchaser, no title.” We cannot accept this as the law. See Bump (10th ed.), p. 177. It must be borne in mind that Bray had given this deed of trust to Wortham with power of sale long before his bankruptcy, though the power was executed afterwards.

This precise state of facts came before the supreme court of Massachusetts in the case of Hall v. Bliss, 118 Mass., 554, Chief Justice Gray delivering the opinion. In that case Hall and wife executed a mortgage with power of sale to A. T. Stewart, upon certain property in Massachusetts in 1870.

On December 1, 1871, Hall being still the owner of the property subject to the mortgage, was adjudged a bankrupt. On December 13, 1871, the mortgage debt being unpaid, Stewart sold the property under the power. The court held the sale good notwithstanding the bankruptcy of Hall.

Upon that point the chief justice says: “The power being coupled with an interest in the estate conveyed, could not be revoked by the mortgagor; and the authority of the mortgagee to execute it in the mortgagor’s name, and as his attorney, was not affected by his bankruptcy, for his assignee could only take subject to the rights of the mortgagee.”

Another interesting case is that of Eyster v. Gaff et al., 1 Otto (91 U. S.), 521. In that case one McClure had given a mortgage to Gaff upon certain lots in Denver City, Colorado. Gaff brought suit on the mortgage in the state court, and a decree of foreclosure was rendered on July 1,1870. Under this decree Gaff bought the lots. But in May preceding, McClure had been adjudged a bankrupt and his assignee appointed. He filed his schedule, in which the lots with Gaff’s mortgage upon them were set out. The defendant in the suit was a tenant of McClure, and defended his possession on the ground that the foreclosure proceedings, after the adjudication of bankruptcy and the appointment of the assignee, were void. The supreme court of the territory pronounced the title of Gaff valid on an error. The supreme court of the United States affirmed the judgment.

We conclude that the court below did not err in sustaining the exception'above set forth.

In our opinion there is no merit to the homestead claim as set up by the defendants, nor was there any error in the charge of the court upon that part of the case.

We conclude that the judgment should be affirmed.

Affirmed.

[Opinion adopted January 29, 1884.]