Hatcher v. Jones

53 Ga. 208

• Court: Supreme Court of Georgia
• Decided: July 15, 1874
• Status: Published

Opinion

McCay, Judge.

The bankrupt was well aware that he had given this mortgage, and it was his own fault to have taken his exemption on the property mortgaged. The bankrupt act expressly preserves the liens of mortgages, and if the mortgagee does not prove his debt, he may proceed with his mortgage without reference to the proceedings in bankruptcy. Had the assignee so determined, he might have forced the mortgagee into the bankrupt court. If the claim of the bankrupt for exemption was superior to the mortgage, and it was necessary to settle the rights of the parties, to call the mortgagee before the bankrupt court, we doubt not it could have been done. But unless (lie mortgagee, either by his own volition or by proceedings for the purpose, is before the bankrupt court, any disposition of property there is always subject to incumbrances.

Judgment affirmed.