In re Bowler

E.D. Virginia

In re Bowler

3 F. Cas. 1072, 2 Hughes 319

DecidedJune 15, 1877

StatusPublished

This text of 3 F. Cas. 1072 (In re Bowler) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Bowler, 3 F. Cas. 1072, 2 Hughes 319 (E.D. Va. 1877).

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Opinion

HUGHES, District Judge.

The landlord had a lien to the amount of $732.25 upon that part of the bankrupt’s property which brought $1232.85. There were two classes of this property, which respectively brought $564 and $668.85. The deed of trust creditor had . a lien upon so much of this same property as brought $564, and there was not enough for both by $63.40. The landlord’s claim was, under the laws of Virginia, superior in dignity to that of the trust creditor on the property subject to the trust deed, and was also superior to the bankrupt’s claim for an exemption, which (but for the landlord’s claim) would have been payable out of that part of his property which brought $668.85.

This case differs from that of B. D. Cog-bill [Case No. 2,954], decided in April, in the, fact, that, in Cogbill’s Case, the claim superior to the trust deed was that of a judgment creditor, whose right was, as to the general estate, inferior to that of the bankrupt for a homestead exemption. In Cog-bill’s Case the judgment creditor’s claim was superior to that of the trust creditor’s only as to the property covered by the trust deed, but was inferior to that of the homestead as to the remaining estate, and, therefore, he had not “two funds” out of which he was at liberty to make his debt; for, under the laws of Virginia, a judgment creditor’s Hen is not, in general, superior to the homestead.

In the present case, however, the landlord having two funds out of which he could make his debt, which as to both the two funds was superior to the bankrupt’s claim for exemption, if he has been paid out of that one of the funds on which the trust deed creditor had no lien the trust creditor must be subrogated to his rights, and receive that portion of the aggregate fund which was left after satisfying the landlord. The exceptions of the trust creditor, John Dun-lop, are therefore sustained, and an order will be made accordingly.

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HUGHES, District Judge.

The landlord had a lien to the amount of $732.25 upon that part of the bankrupt’s property which brought $1232.85. There were two classes of this property, which respectively brought $564 and $668.85. The deed of trust creditor had . a lien upon so much of this same property as brought $564, and there was not enough for both by $63.40. The landlord’s claim was, under the laws of Virginia, superior in dignity to that of the trust creditor on the property subject to the trust deed, and was also superior to the bankrupt’s claim for an exemption, which (but for the landlord’s claim) would have been payable out of that part of his property which brought $668.85.

This case differs from that of B. D. Cog-bill [Case No. 2,954], decided in April, in the, fact, that, in Cogbill’s Case, the claim superior to the trust deed was that of a judgment creditor, whose right was, as to the general estate, inferior to that of the bankrupt for a homestead exemption. In Cog-bill’s Case the judgment creditor’s claim was superior to that of the trust creditor’s only as to the property covered by the trust deed, but was inferior to that of the homestead as to the remaining estate, and, therefore, he had not “two funds” out of which he was at liberty to make his debt; for, under the laws of Virginia, a judgment creditor’s Hen is not, in general, superior to the homestead.

In the present case, however, the landlord having two funds out of which he could make his debt, which as to both the two funds was superior to the bankrupt’s claim for exemption, if he has been paid out of that one of the funds on which the trust deed creditor had no lien the trust creditor must be subrogated to his rights, and receive that portion of the aggregate fund which was left after satisfying the landlord. The exceptions of the trust creditor, John Dun-lop, are therefore sustained, and an order will be made accordingly.

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Bluebook (online)

3 F. Cas. 1072, 2 Hughes 319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bowler-vaed-1877.