In re Blair

• Decision Date: 30 April 1901
• Docket Number: 4,538.
• Citation: 108 F. 529
• Parties: In re BLAIR.
• Court: U.S. District Court — District of Massachusetts

108 F. 529

In re BLAIR.

No. 4,538.

United States District Court, D. Massachusetts.

April 30, 1901

W. F Kimball, for creditor.

William A. Knowlton and Samuel O. Reinstein, for bankrupt.

LOWELL District Judge.

In this case the personal property of the bankrupt was duly attached on mesne process in this commonwealth more than four months before the filing of the petition in bankruptcy. Thereafter and within four months before such filing, judgment was entered against the bankrupt, execution was taken out, and a levy was made. The petitioner contended that the judgment execution, and levy were avoided by section 67f of the bankrupt act; and the question here presented concerns the effect of that subsection upon a Massachusetts attachment made more than four months before the filing, when the execution and levy were within such four months. The material part of the subsection reads as follows:

'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.'

In Re De Lue (D.C.) 91 F. 510, it was said that the provisions of section 67f were limited to involuntary bankruptcy. The remark was hastily made, both counsel in that case having agreed in argument upon that construction of the section. It was clearly erroneous, and has long been treated in this district as overruled. Section 67f avoids certain liens, if created within four months. This is its object. It does not avoid judgments or levies, except so far as these create a lien. In re Kavanaugh (D.C.) 99 F. 928; In re Lesser, 5 Am.Bankr.R. 320, 324. ^[1] It releases the property affected by levies, judgments, and attachments so far as these create a lien. Now, an attachment, in and of itself, and without further proceedings, creates a lien in massachusetts. This has been decided by the supreme court of the United States in Peck v. Jenness, 7 How. 612. With this decision agrees that of the supreme court of Massachusetts in Davenport v. Tilton, 10 Metc. (Mass.) 320; and, if it be possible that these concurrent decisions leave a doubt in the matter, that doubt is resolved by the present bankrupt act, which itself speaks of attachments as liens. If any attachment creates a lien, then no doubt this is such an attachment. Hence, if the attachment be made more than four months before the petition is filed, the attachment and the lien which it creates are both preserved, by necessary implication, as against the operation of the bankrupt act. If, therefore, the plaintiff had here permitted this suit to stand without proceeding to judgment, his attachment would necessarily have remained a lien upon the property attached until dissolved by some proceeding outside of bankruptcy. It is urged that whatever be the lien created by an attachment, standing alone, that lien cannot be enforced by judgment entered or levy made within four months of the filing of the petition. Where, however, the lien is created by the attachment, the judgment and levy create no new or additional lien, but only enforce a lien already existing. Hence in this case the levy and execution did not affect the property attached with a lien avoided by the bankrupt act, but only enforced a lien already existing, which lien the bankrupt act expressly protected. The meaning of the subsection appears to be this: Under some circumstances, all liens obtained through legal proceedings are avoided, in whatever part of the suit or by whatever form of proceeding they are created. If the lien is created by the levy, then the lien of the levy is avoided; if created by the judgment, then the lien of the judgment is avoided; if created by the attachment, then the lien of the attachment is avoided; but,...