Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1875-12-10

dorsement and having the mortgage cover the
subsequent acquired property OF the mortgagor.
was to delay other creditors and prevent their at
tachment of this property. The original mortgage
provided that all property of similar description
to that then on the premises which the mortgagor
should thereafter add thereto, should pass under
/ the mortgage snd stipulation of this nature
was held valid and efiectua as against an Assignee
in bankruptcy under the former bankrupt law
Mitchell vs.. Winslow, 2 Story, R.-So that all of
the subsequent acquired property Of a similar de-
sci1pton to the old, the mortgages could have
retained as against an Assignee in bankruptcy.
Cashman has not been called to contradict this
statement of the bankrupt, and am therefore for
this hearing to consider it established, that
motive and purpose of the mortgages in procur-
ing this endorsement to delay creditors of the
bankrupt, and that this transfer Of the subsequent
acquired property was fraudulent and could not
prevail as against attaching creditors.
No rights, therefore, were acquired to the new
property, and this endorsement nulty, so
far creditors were concerned-but that hold is
the extent of its operation. 1t did not deprive the
creditors of any rights whatever which they before
had. The newly acquired property was still open
to attachment for Baker's debts, but the property
which belonged to Baker at the time the original
mortgage was executed, did not become subject to
such liability. That mortgage was originally
valid and efiectual, and SO continued notwith-
standing the parties at a day long subsequently
might have contemplated fraudulent purpose
relative to the property of the bankrupt, and to
subject it to liability for the security of the same
claims embraced In the original mortgage. The
rights of sll parties are the same as they would
have been if instead of making this endorsement
on the back of the riginal mortgage, separate,
independent mortgage had been given on August
), upon the subsequent acquired property, as
curty for the claims covered by the original mort
gage, and the parties at the time had designed
thereby TO defeat or delay the other creditols,-
it is quite clear that the latter mortgage would be
fraudulent and void against creditors and As
signecs in bankruptcy, but it is equally clear to
my mind that it could not in any manner affect the
prior mortgage by any fraud in its inception.
In the present case the petitioners have filed
written waiver and release of all interest i'll and
to any property not included in the original
mortgage, the proceeds realized from the sale of
that property being in excess of the amount paid
by them to the mortgages so that no claim is
made under the fraudulent endorsement.
1t Is further contended by the asslgnees that
there has been collusion between the petitioners
and the owners of the Augusta House, to turn
over all the personal property of the bankrupt to
the petitioners, and that they might acquire a
title thereto for sum far below its real value,
and in fraud of the other creditors. The history
of the certainly manliests that the owners OF
the property quite willing to be rid of Baker
) their tenant, and that the petitioners, or Whit
he'd, might take possession IN his stead and occupy
the house, and acquire all their rights to Bakers
property on complying with his obligations under
these eaGs there can be no question that the land
lords resorted to n foreclosure of the mortgage,
and their process Of torcible entry aud detainer,
and the attaching creditors to the appraisal and
contemplated sale by the sheriff of the property
attached; but every step in those proceedings was
in accordance with the laws of this State, while
TO countcract their force and effect the bankrupt
and his creditors applied TO the court, and aYalled
themselves Of its restraining process to prevent
their opponents obtaining any advantage bv their
Unicr
State laws. Zach side, in my view, stood on their
legal rights, euleayorlng to obtain all the advan-
tages that the law would afford them, and it
would now SEEM the whole rather resulted in
drawn game, neither party having ob,anei any
very great success over the othcr the property of
the bankrupt having vested in his asst gnecs in
substantially the same condition 1t would have
done II this warfare had never existed. But moth
ing is shown which would Justify this court in de-
claring that there was such collusion between
the parties as should deprive the petitioners of
any rights to which they would otherwise be en-
titled.
Having disposed OF these objections, there ~
mains 10 be determined what the petitioners
rights in this fund, the proceeds of the mortgaged
property sold by order Of the court, and now in
the custody Of the court, a. against the asslgnces
in bankruptcy.
The petitioners IN 4lc an attachment Of this
property to secure Just debt, this attachment
was valid under the law Of this State but liable
to be defeated by proceeding in bankruptcy instl
ty.eI within fon, rprrths he p,0porfV thul at.
tsched was sI,h;rct to a v,I;1 mn,tgaar and the
laws Of hi. S,ste emnoycred the aiiacbins cred
;tors n nav tbe an,niint or hi. incnmbrance and
Iiscboror Ibo c,a;n, tho,con owl If The creditor
radonm tke y,orc,tv anL !; !. snhsconrnt1v sold hy
tho oiicer he shall from the proceeds fr.t nav to
tho crcli,or ri, amount ith interest maid nv him
~ radee'n tbe prono,t<, lbr ftrfr in striri rom
nIiance Win me Iiw ras about to >oiI his nron-
c,tv snd nav no The creditor, tbc amonnt thev had
na,d +, rrcjesn, ,yhcn he vss enio;ne1 hv his
r"Irt rrom 90 d,iny and wa. c,1nEeIlc,l 10 retain
no nrn, XIV rn,ii nssi'rnoos we,e arno;ntcd and
bo, to s,,r,cr!nr if to mon AZ thdy have nee
h nro, cr ~ Inn,t SoId if fSr .},n in e>rces
nj Tho smnunt maid by the c,e@itor, to redeem if.
lndcr these circumstances which patty has the
better equity, the creditors who have paid this
amount TO discharge this valid CAIN, an incum-
brunce upon the property, and for which at present
they are last 80 much the poorer or the assisnees,
who hy reason and on account of this very pay
ment by these ciGdtors' have received the prop
erty renewed snd discharged ron 'hls lncnmprahce
and thereby the estate IN bankruptcy Is just so
much the larger Tor dis'fin9uon than 1t would
have been II tue creditors had not PAID tins sum
The simple statement oi the proposition pre-
sents most conciusNeIy rs own solution. Con-
cedins that the payment oil the amour,
dischersed' the incumbrance or redeemed,