« ForrigeFortsett »
the time of the lease, and the lien of the distress warrant is not one obtained through legal proceedings within the meaning of the anti
preference provisions of the Bankruptcy Act. Under the Bankruptcy Act of 1867 a statutory attachment for rent
in the nature of a landlord's distress warrant levied within the preference period was not nullified or discharged by the bankruptcy proceedings and there is nothing in the act of 1898 opposed to this
conclusion. The general provisions of the Bankruptcy Act of 1898 indicate &
purpose and intent, as against general creditors, to preserve rights such as those given by the Georgia statute to landlords even though
not enforced until within four months of the bankruptcy. 175 Fed. Rep. 633, affirmed.
SAMUEL MAYER owned a plantation in Dooley County, Georgia, which he rented to Joseph Burns for one year. The rent not having been paid at maturity, Mayer, on Nov. 13, 1908, made an affidavit in conformity with the statute, and a justice of the peace thereupon issued a distress warrant, which, on the same day, was levied upon the cotton, corn and other products of the place. The crops found on the premises being, apparently, insufficient to pay what was due, the sheriff, at the same time, levied upon other property by virtue of 8 2795 of the Code of Georgia, which declares that “Landlords shall have a special lien for rent on crops made on land rented from them, superior to all other liens except liens for taxes and shall also have a general lien on the property of the debtor, liable to levy and sale, and such general lien shall date from the time of the levy of a distress warrant to enforce the same.”
Three days after the levy a petition in bankruptcy was filed against Burns, the tenant, who was subsequently adjudged a bankrupt. The trustee, when elected, obtained possession of all the property seized by the sheriff, and subsequently sold it in the due administration of the estate. The proceeds of the cotton and corn were paid over to Mayer, it being conceded that the Landlord's
Special Lien on the crops had not been affected by the bankruptcy proceedings.
Mayer also claimed that, by virtue of his general lien, he was entitled to have the balance of the rent paid out of the proceeds arising from the sale of the other property levied on, and filed his intervention to secure such an order. The trustee's objection was sustained by the referee on the ground that the Landlord's General Lien was discharged because it had been “obtained by legal proceedings" or levy made three days before the filing of the petition in bankruptcy. His ruling was reversed by the District Court (175 Fed. Rep. 633). That judgment was affirmed by the Circuit Court of Appeals without opinion. The case was then brought here by writ of certiorari, granted at the instance of the trustee, who claims that under the Georgia Code the landlord had no lien on the property prior to the levy of the distress warrant, and that whatever right had been acquired by that seizure was discharged by $ 67f, which declares that “all levies, judgments, attachments, or other liens obtained through legal proceedings against a person who is insolvent at any time within four months prior to the filing of a petition in bankruptcy against him shall be null and void in case he is adjudged a bankrupt.”
Mr. Orville A. Park, with whom Mr. George S. Jones and Mr. Merrel P. Callaway were on the brief, for petitioner:
The Georgia law must govern the bankruptcy court sitting in that State as to what liens are recognized in Georgia and how and when they arise or are obtained. Collier on Bkcy. (8th ed.), 741.
The construction placed upon a state statute by the highest court in the State will be adopted by the Federal court when called upon to construe such statute.
A landlord's general lien dates from the time of the levy of a distress warrant to enforce the same. Ga. Code
1895, $ 2795; Ga. Code 1910, $ 3340; Hobbs v. Davis, 50 Georgia, 214; Johnson v. Emanuel, 50 Georgia, 590; Elam v. Hamilton, 69 Georgia, 736; Thornton v. Wilson, 55 Georgia, 608; Jones v. Howard, 99 Georgia, 451. Loudon v. Blandford, 56 Georgia, 150, can be distinguished.
The Federal court administers the law of the State in conformity with the decisions of the state court. Re Dougherty Co., 109 Fed. Rep. 480. Re Burns, 175 Fed. Rep. 633; Re V. D. L. Co., 175 Fed. Rep. 635, are directly opposed to both the letter and the spirit of the Georgia statute and to the decisions of the Georgia court of final resort.
If the lien was created or obtained more than four months prior to the adjudication in bankruptcy, although completed and enforced by a judgment within the four months' period, it is entitled to priority. If created or obtained within the four months, it is invalidated. Metcalf v. Barker, 187 U. S. 165; Morgan v. Campbell, 22 Wall. 381. Re Robinson & Smith, 154 Fed. Rep. 343, distinguished.
The question presented is one belonging to the local law of Georgia. Longstreth v. Pennock, 20 Wall. 575.
Mr. Arthur H. Codington for respondent:
Except in their rank in relation to other statutory liens, the special and general lien given by the Georgia law in every material respect are alike, and in each there is a legal proceeding for its enforcement, namely, a distress warrant. Ga. Code, 1895, $$ 2795–2797.
The general right of the landlord is not vacated by bankruptcy, but is entitled to be paid as a priority. 2 Tiffany on Landlord & Tenant, 1925; Austin v. O'Reilly, 2 Woods, 670; 18 Am. & Eng. Ency. Law (2d ed.), 426-432.
The right of the landlord against the goods and chattels of his tenant inheres in the relationship of the parties and the statutes themselves. This lien or right is not founded
upon the legal proceedings, which are merely the machinery for its enforcement. 24 Cyc. of Law & Proc. 1249, 1250, and cases cited; Sims v. Price, 123 Georgia, 97; Cohen v. Broughton, 54 Georgia, 296; Tyner v. Slappey, 74 Georgia, 364.
The Bankruptcy Act preserves and gives effect to all priorities and liens which are not preferential or in fraud of the act and which are recognized by the several States.
The trustee stands in the shoes of the bankrupt as to the property of the bankrupt, which is charged with all legitimate priorities and liens. Collier on Bkcy. (7th ed.), 741, 742, 761; Humphrey v. Tatman, 198 U. S. 90, 92–95; Hauselt v. Harrison, 105 U. S. 401–408; York Mfg. Co. v. Cassell, 201 U. S. 344, 351-353; Bacon v. Int. Bank, 131 U. S. ccxvi; Longstreth v. Pennock, 20 Wall. 576.
A lien is not restricted to a right reduced to possession or upon specific property. It may be a simple right or charge against property. 2 Story, Eq. Jur., 1215; The Menominee, 36 Fed. Rep. 199; 2 Tiffany, L. & T. 1898.
The landlord's rights enforced by distress warrant are not divested by the bankruptcy of the tenant within four months thereafter, the lien of the landlord being based on the relationship of landlord and tenant and not being one "obtained by legal proceedings” within the meaning of § 67f of the Bankruptcy Act. In re Robinson & Smith, 154 Fed. Rep. 343; In re West Side Paper Co., 162 Fed. Rep. 110. See In re Hoover, 113 Fed. Rep. 136; Wilson v. Penn. Trust Co., 114 Fed. Rep. 742; In re Duble, 117 Fed. Rep. 794; In re Pittsburg Drug Co., 164 Fed. Rep. 482; In re Belknap, 129 Fed. Rep. 646; In re Mitchell, 116 Fed. Rep. 87; In re Bishop, 153 Fed. Rep. 304; Malcomson v. Wappoo Mills, 85 Fed. Rep. 907, 910. And see, also, In re Hersey, 171 Fed. Rep. 100; In re Bayley, 177 Fed. Rep. 522; In re Bourlier C. & R. Co., 133 Fed. Rep. 958; In re Morris, 159 Fed. Rep. 591; In re Seebold, 105 Fed. Rep. 910; Longstreth v. Pennock, 20 Wall. 575–577; Marshall v.
Knox, 16 Wall. 551; Schall v. Kinsella, 117 Louisiana, 687; In re Wynne, Fed. Cas. No. 18117; In re Trim, Fed. Cas. No. 14174; In re Appold, Fed. Cas. No. 499; In re Bowne, Fed. Cas. No. 1741; In re Dunham, Fed. Cas. No. 4145; In re Hoagland, Fed. Cas. No. 6545; In re Rose, Fed. Cas. No. 12043; Lambert v. De Saussure, 4 Rich. L. 248; Austin v. O'Reilly, 2 Woods, 670; Fed. Cas. No. 665.
The courts likewise have sustained similar priorities or liens, such as those of laborers, materialmen and mechanics. In re Bennett, 153 Fed. Rep. 673; Central Trust Co. v. Richmond &c. R. Co., 68 Fed. Rep. 90; In re Laird, 109 Fed. Rep. 550; In re Falls City Mfg. Co., 98 Fed. Rep. 592; In re Emslie, 102 Fed. Rep. 291; Duplan Silk Co. v. Spencer, 115 Fed. Rep. 689; In re Kerby Dennis Co., 95 Fed. Rep. 116; In re Lewis, 99 Fed. Rep. 935; In re Grissler, 136 Fed. Rep. 754; In re Dey, Fed. Cas. No. 3871; In re Georgia Handle Co., 109 Fed. Rep. 632; Kane Co. v. Kinney, 174 N. Y. 69.
The Georgia decisions also support respondent's contentions. Loudon v. Blandford, 56 Georgia, 153; Hight v. Fleming, 74 Georgia, 592; Davis v. Meyers, 41 Georgia, 95; Boehm v. Nelson, 61 Georgia, 441; Talliaferro v. Pry, 41 Georgia, 622; Crine v. Davis, 68 Georgia, 138. Hobbs v. Davis, 50 Georgia, 214; Johnson v. Emanuel, 50 Georgia, 590; Elam v. Hamilton, 69 Georgia, 736; Thornton v. Carver, 80 Georgia, 397; Lancaster v. Whiteside, 108 Georgia, 801, can be distinguished.
MR. JUSTICE LAMAR, after making the foregoing statement, delivered the opinion of the court.
The provisions of the Bankruptcy Act, preventing an insolvent from giving or the creditor from securing preferences for preëxisting debts, apply not only to mortgages and transfers voluntarily made by the debtor, but also to those preferences which are obtained through legal pro