Opinion. upon the lands of Henry L. Muse in the hands of Blair, the court entered a decree confirming this report, and providing for a sale of the land, unless Blair, or some one for him, should pay the said judgments within thirty days. From this decree Blair appealed, and assigned as error the action of the court in holding these judgments liens on his land, which had been discharged by the certificate of discharge of the bankrupt, and because each of the said judgments had been barred by the statute of limitations. It is admitted by the appellant that the $2,409.07, now unpaid, is due by Blair; that it is a part of the purchase money for Blair's land, and is payable to the creditor who' holds the prior lien. There is no objection on the part of Blair to pay this money; he admits that it is due, but claims that it is the measure of his liability, and submits to the court the question as to the direction in which it shall go. The circuit court decided that inasmuch as the land in the hands of Blair was held liable to pay the judgments abovementioned, it would be inequitable to require Blair to pay the purchase money to Skinner & Co., as had been before ordered, and that Blair was entitled to use the same to pay off the judgments, and revoked the decree of the February term, 1877. The effect of which decision was for Blair to lose his debt of $1,668.08, as the judgments, aggregating $4,922.78, would absorb the entire value of the land; as to Skinner & Co., by the said decree they lost their debt of $1,000; as to the judgment creditors above named, they obtained the entire proceeds of the land bought by Blair. Blair, having obtained the appeal from the decree, Skinner & Co. have, as appellees, assigned errors here looking to the preservation of their interests stated above. Blair appeared in this court, by counsel, on the 3d of December, and dismissed his appeal; subsequently Skinner & Co. made a motion in this court to reinstate the appeal, which was docketed and notice given to Blair for the day of this term, when VOL. LXXVIII-79 Opinion. Blair appeared, by counsel, and consented to reinstate the cause, and the same was done upon the motion of Skinner & Co. Upon the argument here, counsel representing Skinner & Co. and the judgment creditors, all the appellees, have moved the court to dismiss the appeal as to the judgment creditors, Carter & English, &c., and allow a hearing only on the appeal as between Blair and Skinner & Co., and not as between Blair and the other appellees, upon the ground that Blair having dismissed the appeal, and it never having been reinstated as to the appellees, Carter & English, it must stand dismissed as to them. It would be impossible in the first place to consider the case in any such aspect; if the purchase money which Blair owes is left to go, as by the decree complained of it is ordered, to the judgment creditors, the whole fund is absorbed by them, and there is nothing left for Skinner & Co., as it will be remembered Blair's lien on the land was superior to that of Skinner & Co. But an inspection of the records of this court shows that while the cause was reinstated upon the motion of Skinner & Co., it was reinstated as a cause in its entirety, and not solely as to Skinner & Co. And the motion to dismiss the appeal upon that ground must be overruled. There is, indeed, but one question in this cause, and in that surely Skinner & Co., and the judgment creditors can have no common interest. For that question is: Does the money which Blair agreed to pay for this land go to the judgment creditors, or to Skinner & Co., by reason of their trust deed? If it goes to the judgment creditors because their liens are prior to Blair's, they are likewise in that case prior to Skinner & Co. And if the liens of the judgments do not attach to the land in the hands of Blair, then Skinner & › Co. will in that case be entitled to what is not necessary to pay the debt of Blair, which is superior to that of Skinner Opinion. & Co.; and in that event the judgment creditors, the appellees, Carter & English, receive nothing. So it is clear that the cause could not be heard as to Blair, and Skinner & Co., without being also heard as to the appellees, Carter & English; and it is equally clear that said appellees, Carter & English, on the one hand, and Skinner & Co. on the other, can have no common interest in the cause. The judgments having been obtained after the adjudication of bankruptcy of Henry L. Muse, and before his discharge, and upon debts existing prior to the adjudication of bankruptcy, which were provable under the bankrupt act, were the judgments provable under the bankrupt act and so discharged by the subsequent discharge of the bankrupt? Upon the correct answer to this question this case must turn. For the joint contention of Skinner & Co., and of the judgment creditors, Carter & English, that Blair, having bought this land for $4,077.15, with a prior lien on it as to Skinner & Co., of $1,668.08, can be held to pay judg. ment liens, existing prior to his purchase, of $4,922.98, and a trust deed lien subsequent to his own of $2,409.07, aggregating $7,331.85, can find no sanction in any court of justice. The decree of February, 1877, has been set aside, and the right of Blair to apply the proceeds in his hands to the satisfaction of prior liens has been recognized, and the trustee enjoined and restrained from paying the purchase money when collected to the satisfaction of the Skinner & Co. debt, and the said proceeds have been decreed to be paid in satisfaction of the judgments obtained since the adjudication in bankruptcy. The grounds upon which these judgments are held to be liens upon the after-acquired lands of the discharged bankrupt is, that the original debts were merged in the judgments, and the judgments being new debts, and subsequent to the adjudication of bankruptcy, were not provable under the bankrupt act, and not affected by the discharge of the Opinion. bankrupt. With regard to this question, we may say that the object of the bankrupt act was to discharge a debtor from all pre-existing debts subject to its operation. If we admit the principle that one debt which has been matured to judgment before adjudication is barred by the discharge, while another which is so matured after adjudication is not so barred, we thus admit a principle which would concede to the State court the right to disregard a law of congress, passed in accordance with the authority of the constitution of the United States. Section 5106 of the revised statutes of the United States provides, as follows: "No creditor whose debt is provable shall be allowed to prosecute to final judgment any suit at law, or in equity therefor, against the bankrupt until the question of the debtor's discharge has been determined." Upon the application of the bankrupt all proceedings were to be stayed; and it was further provided that, by leave of the court in bankruptcy, the suit might go on, in order to ascertain the amount which ought to be proved in bankruptcy. The section 5119 provides that: "A discharge in bankruptcy duly granted shall, subject to the limitations imposed by the two preceding sections, release the bankrupt from all debts, claims, liabilities, and demands which were or might have been proved against his estate in bankruptcy." Can it be claimed that this general and comprehensive language does not include both illustrations stated above? If the debt matured to judgment after the adjudication, cannot for that reason be proved, yet it must be admitted that it might have been proved; and if so, it must be affected by the discharge under the plain terms of the law. It is stated in argument that this question has been variously decided in the different courts of this country, and a somewhat careful inspection of the decisions upon this point will show that this is entirely true; one court holding as against the creditor, that by maturing his Opinion. debt to judgment after adjudication, he lost all right to prove his debt. Neither the debt nor the judgment are provable. The debt is merged in the judgment, and the judgment did not exist at the time of the adjudication of bankruptcy. In re Williams, 2 Bank. Register, 79; Bradford v. Rice, 102 Mass. 472; in re Gallison et al., 5 B. R. 353. But this is not sufficient for the view contended for, if it be true, as so stated, that neither the debt nor the judgment can be proved, yet it could have been proved, and so is brought within the terms of the law. Again, it has been held that it is not the judgment, but the debt as it existed at the filing of the petition, that is provable. In re Vickens, 3 B. R. 171; in re Brown, 3 B. R. 145. And again, the debt as it stood at the time of the filing of the petition, is merged in the judgment, and the judgment must be proved. The judgment must be proved, not because it existed at a proper time, but because the debt constituting the foundation did exist at that time. Crawford, 3 B. R. 171; in re Stevens, 4 B. R. 122. In re It is clear upon an examination of the cases that the result of the decisions upon the question as to whether a judgment obtained after adjudication upon a pre-existing debt is, that a debt upon which a judgment has been rendered since the commencement of proceedings in bankruptcy must be proved. The debt is not extinguished. The instrument, contract or obligation, upon which the debt arose, is extinguished, but not the debt. The debt remains. If this were not so the judgment would destroy itself by extinguishing the very foundation upon which it is built. The debt was founded upon contract; it is now founded upon judgment, but it is nevertheless the same debt. A judgment operates to extinguish a debt only |