Milliken v. Barrow

55 F. 148, 1893 U.S. App. LEXIS 2537

• Court: U.S. Circuit Court for the District of Eastern Louisiana
• Decided: April 13, 1893
• Status: Published

Opinion

BILLIhTGS, District Judge.

This case arises as follows: On January 26, 1893, the defendant, 0. J. Barrow, made a surrender to his creditors under the insolvent laws of Louisiana, which was on that day accepted, and on January 31st a provisional syndic was appointed. On January 31, 1893, the complainant, B. Milliken, who held a mortgage which was executed by tbe defendant, 0. J. Barrow, upon certain real estate, — the mortgage containing the clause de non alienando, — issued what is known as “executory process” in this court. The syndic had not taken possession of the mortgaged property, and the marshal took the same into his possession under the writ. The complainant, 'Mr. Milliken, is a resident of this state, though an alien, being a subject of Great Britain. It is seen by this recital of the facts that the surrender of the defendant’s property to his creditors had been accepted by tbe insolvent court prior to the issuance of the complainant’s executory process. I think it is the settled law that after the acceptance of a surrender by the state court no process can issue against the debtor’s property in the courts of the United States. Geilinger v. Philippi, 133 U. S. 246, 10 Sup. Ct. Rep. 266. At page 257, 133 U. S., and page 269, 10 Sup. Ct. Rep., the court says: “By the insolvency proceedings Green’s [the insolvent debtor’s] assets were placed in .gremio legis, and could not be seized by process from another court.” See Tua v. Carriere, 117 U. S. 201, 208, 6 Sup. Ct. Rep. 565; Bank v. Horn, 17 How. 157; Peale v. Phipps, 14 How. 368; and Wiswall, v. Sampson, Id. 52. In Peale v. Phipps, supra, at pages 374 and 375, the court enforce this doctrine without reference to whether the officer who represented the state court had taken possession of the property sought to be seized by the process issuing from the United States court.

But it is urged by the complainant that Ms mortgage contained the pact de non alienando, and that, therefore, the mortgagor could not alienate it so sis to defeat or delay his light to seize it Under the law of Louisiana, after a cessio bonorum of the mortgagor, the mortgagee cannot seize; the property must be administered by Ihe syndic. Bermudez v. Ibanez, 3 Mart. (La.) 19; Chiapella v. Lanusse’s Syndics. 10 Mart. (La.) 449; Devron v. Creditors, 11 La. Ann. 482; Orr v. Lisso, 33 La. Ann. 476. In Wheeler v. Stewart, 18 La. Ann. 673, it was so held where the mortgage contained the pact de non j-Iieirando. The complainant’s mortgage is dated March 2, 1891, many years after the decisions which had thus settled the lavs asd been rendered. It follows that, so far as citizens of Louisiana are concerned, mortgagees accepted mortgages with the interpretation given as part of the mortgages themselves. Nor does it •affect the question that the complainant is an alien, so long as he Lias been for 40 years a resident of Louisiana. Alienage on the part of plaintiff gives jurisdiction, to the United Slates circuit court as against citizen defendants. But with, reference to an alien who ivas at the time of making Ms contract, which concerned real estate situated within this state, an actual resident here, the law upon this subject is the same as with, reference to a, citizen of this state. Von Glabn v. Varrenne, 1 Dill. 515, 521.

After the administration of a property mortgaged is finished in tiie insolvency court, provided the complainant is not made a party to the insolvent proceedings, It would seem that he could, by virtue of the past contained in his mortgage, proceed against the mortgaged property in the hands oí subsequent vendees. Egerton v. Creditors, 2 Rob. La. 201. But pending that administra! ion he cannot assort his rights by a process and a seizure which, would wrest this mortgaged properly from a custody under which it Is in eonteiapkilioH of law placed, and which would, therefore, be conirary to the established comity of courts and the good order of society. The injunction restraining the marshal from enforcing the- execute??’ process must issue.