Cole v. Duncan

Citations

• 58 Ill. 176

Syllabus

<p>1. Bankruptcy—as a defense to the foreclosure of a mortgage—construction of section 20 of bankrupt act of 1868. The defendant in a bill to foreclose a mortgage, executed by him, pleaded his discharge in bankruptcy under the bankrupt law of 1868: Held, the 20th section of that act was not intended to disturb the lien of the mortgagee, except by his express' consent, and through the joint action of himself and the assignee in bankruptcy. If the mortgagee desire to prove his debt and participate in the assets of the bankrupt, he can do so upon the release of his lien, but the option is left with him. °</p> <p>2. Parties to a bill to foreclose a mortgage—where the mortgagor has been declared a bankrupt. In such ease, if the mortgagor has, since the execution of the mortgage, been declared a bankrupt, the assignee in bankruptcy is a proper party.</p>