Kokernot-Nixon Properties, Inc. v. Wright
This text of 68 F.2d 317 (Kokernot-Nixon Properties, Inc. v. Wright) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
The Toggery, Inc., was adjudged bankrupt on March 28, 1932, on its voluntary petition filed on the same date. The appellant filed proof of a secured debt for the rent due for the months from and including April, 1931, to and including March, 1932, under a lease made by the appellant to the bankrupt of a store building occupied by the latter. The court allowed the claim asserted as to the rent for the last six months mentioned and decided that appellant was not entitled to a lien or secured claim for the part of the rent which was more than six months past due when the bankruptcy petition was filed. In re Toggery, Inc. (D. C.) 60 F.(2d) 311. On March 25, 1932, appellant filed in the office of the county clerk of Die county in which the storehouse is located a verified statement of the rents claimed to be due for the above-mentioned months, and that statement was recorded at 4 o’clock p. m., March 28, 1932. At the time the bankruptcy petition was filed there were unsecured claims against the bankrupt amounting to approximately $12,000.
The appellant’s right to a landlord’s lien is dependent upon the Texas statute, set out in the margin,1 the italicized part of which was added by amendment in 1919.
Nothing in the part of the statute which was added by amendment indicates a purpose to deal with the lien for rents which are due six months or less. That part of the statute prescribes requirements to be complied with “in order to secure the lien for rents that are more than six months due.” It seems that as used in the just-quoted part of the statute the words “to secure” meant to obtain or preserve, with the result of making the acquisition or preservation of a lien for rents more than six months due dependent upon a compliance with the prescribed requirement. A purpose to protect unsecured [318]*318creditors of a tenant of a storehouse or other building rented for commercial purposes against the landlord's claim for rent more than six months due is plainly manifested by the provision that “no lien for rent more than six months past due upon any storehouse or other building rented for commercial purposes shall be valid, as against bona fide purchasers or unsecured creditors of said tenant, unless said statement shall be verified, filed and recorded as above provided.” That purpose would be frustrated by giving to a compliance with requirement of the statute, after the accrual of debts of the tenant to unsecured creditors, the effect of subordinating those debts to a lien in favor of the landlord for rents then more than six months past due. We are of opinion that, as to creditors of the tenant whose debts accrued before the statutory requirement, including the record provided for, was complied with, the statute has the effect of preventing the acquisition of a valid lien in favor of the landlord for rents more than six months past due when such compliance occurred. We conclude that the ruling under review was not erroneous.
The decree is affirmed.
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Cite This Page — Counsel Stack
68 F.2d 317, 1933 U.S. App. LEXIS 4948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kokernot-nixon-properties-inc-v-wright-ca5-1933.