Citizens Savings Bank, Inc. v. Astrin

• Decision Date: 15 September 1948
• Docket Number: 148,149,150
• Citation: Citizens Savings Bank, Inc. v. Astrin, 44 Del. 451, 61 A.2d 419 (Del. Super. 1948)
• Court: Delaware Superior Court
• Parties: CITIZENS SAVINGS BANK, INC., a corporation of the State of Delaware, for the use of J. Gordon Govatos, v. SOLOMON ASTRIN, IDA ASTRIN, HARRY Y. ASTRIN, MORRIS ASTRIN, BESSIE ASTRIN and MARY COHEN. CITIZENS SAVINGS BANK, INC., a corporation of the State of Delaware, for the use of J. Gordon Govatos, v. SOLOMON ASTRIN, IDA ASTRIN, MORRIS ASTRIN, BESSIE ASTRIN and MARY COHEN (2 cases)

61 A.2d 419

44 Del. 451

CITIZENS SAVINGS BANK, INC., a corporation of the State of Delaware, for the use of J. Gordon Govatos, v. SOLOMON ASTRIN, IDA ASTRIN, HARRY Y. ASTRIN, MORRIS ASTRIN, BESSIE ASTRIN and MARY COHEN. CITIZENS SAVINGS BANK, INC., a corporation of the State of Delaware, for the use of J. Gordon Govatos, v. SOLOMON ASTRIN, IDA ASTRIN, MORRIS ASTRIN, BESSIE ASTRIN and MARY COHEN (2 cases)

Nos. 148, 149, 150

Superior Court of Delaware, New Castle

September 15, 1948

Actions by the Citizens Savings Bank, Inc., for the use of J. Gordon Govatos, against Solomon Astrin and others to renew the liens of three judgments entered by confession.

Judgments for plaintiff.

John S. Walker for the plaintiffs.

Harry Rubenstein for the defendant, Solomon Astrin.

CAREY J., sitting.

OPINION

CAREY, J.

The nature and purpose of the present proceedings must be kept in mind. By § 4765, Sec. 12. Ch. 132, Revised Code of Delaware 1935, the lien of a judgment upon real estate expires at the end of ten years following the day of entry or the date when payment became due, whichever is the latest unless extended by agreement filed, or by appropriate action started, before the end of that period. After the expiration of ten years, the lien can only be renewed (in the sense of being revived) by scire facias sur judgment. § 4768, Sec. 15, Ch. 132, Revised Code of Delaware 1935. When a proceeding is instituted for that purpose, the writ of scire facias is not an original writ but is a continuation of a proceeding already begun. 2 Woolley on Delaware Practice 889. Furthermore, the judgment entered upon the scire facias proceeding is not a new judgment but is merely a revival of the lien of the original one. The new proceeding establishes no new debt or obligation against the defendant; it simply revives or reestablishes the right of the plaintiff to sue out execution for the purpose of collecting the debt evidenced by the old judgment. 2 Woolley on Delaware Practice 904.

The present actions, then, are not an attempt to obtain new judgments by which the discharged bankrupt could be held personally responsible. Moreover,by the stipulation, they are not intended to subject any property acquired by him after adjudication to a possible liability. The sole purpose is to enable the plaintiffs to proceed against a property which was bound by the original liens and which, according to the plaintiff's theory, continued to be so bound after the adjudication until those liens expired by the passage of the statutory interval of time. Whereas the bankrupt's discharge terminated his personal legal liability for the debts, it had no bearing upon any liens which were not destroyed by his adjudication. 1 Collier on Bankruptcy (14th Ed.) 1660. Judgments in favor of the plaintiffs in the pending causes would not, therefore, constitute a refusal to give full faith and credit to the judgment of discharge, provided the liens survived the adjudication. On the other hand, if the liens were nullified by the adjudication, they cannot now be revived.

From the agreed facts, it appears that the only property involved in this litigation is the real estate owned by the bankrupt and his wife as tenants by the entirely. In Delaware, this type of ownership retains most, if not all, of its common law features. "Each spouse owns the whole while both live; neither can sell any interest except with the other's consent, and by their joint act; and at the death of either the other continues to own the whole, and does not acquire any new interest from the other. There can be no partition between them. From this is deduced the indivisibility and unseverability of the estate into two interests, and hence that the creditors of either spouse cannot during their joint lives reach by execution any interest which the debtor had in land so held. * * * when land is held by the entireties a judgment against the husband is not during the joint lives of the tenants of the estate a lien on the land, because his possibility of survivorship cannot be taken in execution." Hurd v. Hughes, 12 Del.Ch. 188, 109 A. 418, 419. For this reason the trustee of Solomon Astrin's bankrupt estate could not, and did not, take any title to this property, the ownership of which continued where it had been before his adjudication, towit, in him and his wife.

Section 67, sub. f of the Bankruptcy Act, 11 U.S.C.A. § 107, sub. f as it existed prior to 1938, contained the following provisions:

"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 deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment, or other lien, shall be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt."

The use of the words "null and void" in this section caused some courts to consider that all liens were automatically nullified when obtained by judicial proceedings within four months, regardless of the kind of property involved, subject to attack in any type of proceeding or by any party interested. See Greenberger v. Schwartz, 261 Pa. 265, 104 A. 573. This theory found some support in certain statements made in a few Federal Supreme Court decisions, particularly in the case of Chicago, B. & Q. R. Co. v. Hall, 229 U.S. 511, 33 S.Ct. 885, 57 L.Ed. 1306. However, in that case, although the Court held that a bankrupt debtor could assert the invalidity of such alien, it expressly stated that Section 67, sub. f does not defeat rights in exempt property acquired by contract or by waiver of the exemption.

A contrary theory was advanced by other Courts, which construed the words "null and void" as actually meaning "voidable". They held that the section was intended for the benefit of the general creditors and did not avoid liens as against all the world but only as against the trustee and those claiming under him. See Pigg & Son v....