Scott v. Ellery

Citations

• 142 U.S. 381
• 12 S. Ct. 233
• 35 L. Ed. 1050
• 1892 U.S. LEXIS 1979

Syllabus

<p>Sections 5105 and 5106 of the Revised Statutes relate to different classes of debts against a bankrupt; the former to debts that are proved, the latter to debts that are provable but not proved.</p> <p>A mortgage creditor of a bankrupt óbtaihed a decree for the foreclosure 'of the mortgage, under which the property was sold for less than the ’ mortgage debt. He proved the remainder, deducting the amount received from the sale, in the bankruptcy proceedings. After the discharge of the bankrupt he obtained a decree in the foreclosure proceedings against the debtor for the balance due on the mortgage debt. Held, that by proving his debt in bankruptcy he waived his right, pending the question of discharge, to take a deficiency decree against the bankruptthat after the discharge the right to such a decree was lost altogether; that the debtor was not bound, after his discharge, to give any attention to the foreclosure suit; and that, under .the circumstances, the obtaining a deficiency decree amounted to a fraud in law.</p>