McAllister v. Bodkin

Citations

• 76 Va. 809
• 1882 Va. LEXIS 83

Syllabus

<p>1. Bankrupt—Homestead—Parties—Assignee—Judgment creditors—Case at bar.—Mwas adjudged a bankrupt and discharged in 1S73. He claimed as his homestead certain land, which the bankrupt court allotted him, but without notice to his creditors, who were lienors by judgments recovered in 1857. Those creditors in 1878 filed their bill, in the State court to enforce their liens on said land, but did not make T, who was the assignee in bankruptcy of M, a party. M demurred, answered, and pleaded that the enforcement of the judgments was barred by the lapse of twenty years between their date and the filing of the bill. The demurrer was overruled and decree of sale entered, but the commissioner of sale was not directed to give the usual bond. On appeal by M—</p> <p>Held :</p> <p>1. Under the bankrupt laws of the United States the legal title to the bankrupt’s homestead, does not vest in his assignee; and if it does vest, eo instante the homestead is allotted him, the legal title thereto reverts to him. Therefore the assignee had no interest in the subject of this suit and was not a necessary party.</p> <p>2. The assignee had not even a reversionary interest in the subject of this suit, as by Code 1S73, p. 1171, ch. 1S3, § 8, if the homestead be not aliened in the householder’s lifetime, after his death it continues for benefit of his widow and children, until her death or marriage, and after her death or marriage until the youngest child becomes twenty-one years of age; after which it passes to his heirs or to his devisees,' not subject to dower, but subject to all his debts. In no event does it pass to his assignee in bankruptcy.</p> <p>3. Judgments obtained and docketed, and liens acquired before the debtor is adjudicated a bankrupt, may, after he is discharged as. such, be enforced in the State courts at the instance of persons who were not parties to the bankrupt proceedings, on lands owned by him before his adjudication and allotted him for his homestead.</p> <p>4. The de