In re Straub
| Decision Date | 09 January 1908 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | In re STRAUB. |
W. P Samples, for creditors.
Hugh Warder and G. W. Ford, for Kate Barnes, ex'x.
On the 23d day of February, 1888, Charles H. Straub purchased lot No. 107, in the town of Grafton, and on the 25th day of May following executed a deed of trust thereon to secure George W. Barnes a note for $1,400, payable four years thereafter. On June 29, 1891, Straub conveyed, with covenants of general warranty, this property to his father, John P. Straub, for $3,250 in hand paid. By the will of John P. Straub, dated March 3, 1895, this property was by him devised jointly to his two children, the said Charles H. Straub and Mary F Straub, now Simmons. On August 26, 1897, George W. Barnes died testate, and Kate Barnes qualified as his executrix. On May 25, 1898, Charles H. Straub executed to said Kate Barnes his note for $500, payable one day after date, in lieu of and for the unpaid balance of said original $1,400 debt. Charles H. Straub has been declared bankrupt, and in the settlement of his estate before the referee in bankruptcy Kate Barnes filed said $500 note, claiming it to be a specific and prior lien upon the half interest of said bankrupt in said lot 107 devised to him by his father, secured by said original deed of trust. This contention was denied by the trustee in bankruptcy, who insists that John P. Straub assumed, by his purchase from his son, the payment of the original deed of trust debt; that a novation of he debt was consummated by the execution of the $500 note to Kate Barnes, and the trust lien was thereby extinguished. The referee overruled this contention, but held that only one half of this trust debt could be collected from the proceeds of the sale of the half interest owned by the bankrupt, and that she would be required to resort to the other half interest in the hands of Mrs. Simmons for the remaining half of her debt. From this ruling of the referee both the trustee and Kate Barnes have excepted, and petitioned for revision.
I think the referee was clearly right in holding that there was no novation of the original debt and no extinguishment of the trust lien upon lot No. 107 to secure its payment. The debt was originally the debt of the bankrupt, and whether or not his father, when he took over the property, assumed to pay it, is not material here. It is very clear he gave...
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