The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-11-11

IMPORTANT DECISION OF JUDGE BRYAN Con-
CERNIsG SALES IN BANKRuPrcY.-The following
report Of an interesting case tried before the
United States Court will be read with interest:
United States of America District OF South Caro-
lina-Dstrict Court-In Bankruptcy.-ln the
matter OF ]. d. Magill and w. j. Magill. eX
parte the Bank Of Charleston for the use OF t.
NJ. Beach.
the bankrupts as executors OF their father, upon
bond executed by him in his life time and unpalc
at his death. The petition was filed to set up the
lien of the Judgment in this court, as the bank
rups had divided all the property OF their fathers
estate and had used it as their own. The lien
had been duly proved and recognized IN thls
court, and thereup0n an order OF SAFE was enter
cd in which no terms had been specified, and
which, therefore, required sale for cash. mo-
ton was made on behalf OF certain creditors OF
the bankrupts, who held liens posterior to the
lien OF the Judgment, to modify the terms OF sale
so as to require but one-third (isl cash. remainder
In one and two years, secured by bond and a
mortgage of the property. The reason given for
the motion was that sale Tor cash In tle present
stringency Of the money market would neccssari-
ly cause the property to bring but low price,
and would give the party holding the first lien
control Of the bids. On the other side 1t was IN
sisted that the claim OF the petitioner was under
ajudgment, that this court merely gives force
and effect to the lien OF the Judgment, and tnat
Judgment creditor in the ordinary courts has the
right to sell for cash.
His Honor, Judge Bryan, decided IN substance
as follows:
1t is admitted that under ordinary clrcum'
stances Judgment creditor can sell the property
OF his debtor for cash. Not only would the courts
be slow to deprive him OF the advanl ages Whlcn
his vigilanCc-a quality which the law admlrcs-
has secured to him. But besides this the other
creditors, who have not been so fortunate, can
look to the debtor himself and his fntu,c gains
as source OF satisfaction for their claims. In
bankruptcy the case is different. There the pro-
perty OF the debtor is impOundcd and he goes
free His creditors have nothing else to which
they can look 70. payment but this property In
the hands of the court. For this reason the court
Is called upon TO consider Tx interest OF all the
creditors ami to secure, far as Is pos
siblc, that equality in which this court,
which Is, in the trueSt sense, Il c0art or equity,
may be said to delight. When this equality cannot
be secured by reason Of the prevailing law OF liens,
the court then seeks so TO administer the property
as to secure the largest price, and thus obtain
the greater i'lnd for distribution. In the present
case the petitioner sought The ad of this court.
lie can only obtain it under c M; = Of the court
sale for cash can only scry' his interests. II
NAV ruin the interests OF Gthcr creditors.
The motion ls granted. l;ut whilst the court
seeks to aid the wishes OF tie other creditors ill.,
iury must not be done by its action to the just
rights Of the petitioner. If lie be ma le to wait
for his money, 1t should be made sale for him.
Let the order he modified n proposed, with the
further condition that the n"nd he signed "by
personal security, tc be approved by the as
Signee."