IN BE ALLIN.
which he knew would defeat the object he was earnestly seeking to accomplish? Such an assumption is irrational, because it is utterly repugnant to any supposable motive of human action. Not only was the bankrupt without motive to swear to a falsehood, but he was drawn by the strongest of motives in the other direction. A statement of the simple truth was a decisive condition of his success, and it would require demonstrative proof to warrant the conclusion that he was laboring to defeat what it was conducive to his own interests to promote and accomplish. And this hypothesis is not without support in this, that the books produced are not suggested not to be what'they purport to be, proper books of a!Jcount honestly kept. Although, then, I have some misgivings, I think the safestiiild most charitable explanation of the ba:nkrupt's conduct is that .he was unintentionally mistaken in his' statetnentOf May 25th, and 'therefore that his discharge ought not to be: denied. And so ii is ordered that a decree for his discharge be entered in the usual form.
(District Court, D. Vcrnwnt. June 14,1882.)
REDEMPTfON-HOLDER OF EQUITY-RIGHTS OF.
The owner of the equity of redemption of a mortgage has the right to pay it off to save his estate and protect it against subsequent purchasers and encumbrancers, but he has not the right to take the debt from the mortgagee, as a purchaser, without the consent of the mortgagee, so as to hold it as a debt against the mortgagor.
BAME-PUROHASER-WHAT ESTATE TAKES.
So where a: bankrupt, after proceedings in bankruptcy, under the laws of the state conveyed his homestead interest to further secure a mortgllge debt, and another debt since adjudged fraudulent and void as to his aSSignees, and the farm was afterwards, under order of the court, sold free of the homestead but subject to the mortgage, the aVlJ.ils of the sale being paid into court to stand in lieu of the homestead interest, the purchaser takes only the equity of redemption, which includes the homMtead interest, and he is' not entitled to the fund in the registry to apply it to the payment of the debt; his whole estate being the farm, subject to the, mortgage debt.
In BankrUptcy. W. H. Haywood, for petitioner. Ladd Fletcher, for contra. v.12,no.4-28
WHEELER, D. J. Thebanhupt had a homestead right to the value of $500, if there should be ao much, in a farm subject to a mortgage held by Henry L. Tilton. After the commencement of the proceedings in bankruptcy the bankrupt and his wife, in accordance with the laws of the state, conveyed the homestead interest to Tilton to further secure this mortgage debt and another debt, since. then adjudged fraudulent and void as to .the assignee representing the other creditors. The farm has been sold, free of the homestead but subject to the mortgage, to Jacob Benton, for $501, under an order of court, by the terms ot which the avails of the sale to the amount of the homestead interest were to be paid into court to stand in lieu of the homestead. Benton has filed his petition to have this money, $500, now in the registry and subject to the order of the court.. decreed to him, as being entitled. thereto by virtue of his purchase. Tilton and the bankrupt have appeared in oppositio}l to the petition. These facts appear from a report of the register, agreed to as a statement, and the cause has been heard thereon. The petitioner's claim of right to the money rests principally upon the supposition that by purchasing the equity of ,redemption of the- farm he became entitled to payoff and take the mortgage, and be subrogated to the rights of the mortgagee as to .all securities, and that the whole of the homestead right is to be held for' this debt on account of the invalidity of the other. It is true, generally, that the purchase of a debt draws with the debt the securities for the payment of it, unless a contrary intention and agreement appearsj and, if the a purchaser of this mortgage debt, or with the right to pay it off and take it with all the rights of a purchaser, he does have the right to this homestead security for the debt, in whole, if there is no other debt to which it is applicable, and proportionately, if there is another debt to which it is to apply. . He purchased nothing of Tilton or of the bankrupt. He merely purohased the equity of redemption' of the mortgaged estate and whatever rights belong to that. , The homestead right, what there was of it,"':"and by the sale to the petitioner it is proved to be to the amount of $500,-was independent of the mortgage, and stands; as to this que'stioD, as a separate estate. The owner of the equity of redemption of a mortgage has the right to pay it off to save his estate in the mortgaged premises, and to stand upon it as valid to protect his:estate l1gainst subsjilquElntpurchasers or encumurancers; but he does not, ha;ve the right to take the -. debt from the mortgagee, as a purchaser, without the consent of the
mortgagee, so as to hold it as a debt against the mortgagor. As to the mortgagee, he has the right merely to pay it off; as to thettlortgaged estate, he has the right to stand upon it in aid of his title j as to the mortgagor, he can do nothing with it before he pays it off, for until then he has no right to it iIi any sensei nor after he has paid it off, for then, as to the mortgagee, it is paid, and also as to the mortgagor. It probably would not be claimed that after an owner of the equity of redemption of a. mortgaged estate had paid off the mortgage he, or anyone, could maintain an action upon the debt against the mortgagor. The debt, as to him, would be extinguished. So, here, the petitioner can, by paying off this mortgage debt, have no claim against the bankrupt j and, as there is no debt to follow the paying off, there can be nothing to carry the securities belonging to the debt. The homestead right was never applied in payment of the debt, but has always been left as a mere security for it. If it had been actually applied there would be so much less for the petit,ioner to redeem j but it has not. As the case stands Tilton may have two securities for the same debt-one against the interest in the farm aside from the homestead in the hands of the petitioner, and the other against the homestead interest in the hands of the bankrupt. Neither the bankrupt nor the petitioner can acquire any right to the other's interest without consent of the other, unless it be through Tilton. The bankrupt could,apparently, as well reach the petitioner's interest by paying off the mortgage as the petitioner could the bankrupt's. But, in fact, as this matter is now viewed, neither can of right do anything with Tilton but to payoff the debt, nor anything with the debt afterwards· but to protect his own estate. The petitioner's estate is the farm, aside from the homestead interest; the bankrupt's estate is the homestead interest, for this purpose; and neither has any rights as against the other outside of his own estate. By opeMtion of law the homestead estate has been transfered to the money paid by the petitioner for it, and the petitioner has become entitled to the homestead interest in the farm, so that the petitioner has the whole estate in the farm subject to the mortgage, and the bankrupt's estate is in the money; but this makes no difference. As it now is, the petitioner has no right outside the farm as against the bankrupt, nor the bankrnpt outside the money as against the petitioner. The prayer of the petition is denied, and the petition is dismissed.
PERRY and another, Trustees, etc., v. CO-OPERATIVJll FOUNDRY Co. and others.
(Uircuit Court, N. D. New York. May 8,1882.)
PATENTS FOR INVENTIONS-COMBINATION.
In a reissued patent for an" improvement in coal stoves," adjoining flues at the reat, with walls built on the casing of the same, in combination with illuminating doors or windows in the draft chamber, base section, is not a patentable combination.
2. SAME-GRATE OR FIRE-BED.
A grate or fire-bed, made in sections and placed oe,ow the base of the combustion chamber, as a SUbstitute for an old grate made in one part, and a combination of transparent windows in an ash-pit, is not an invention.
The SUbstitution, in a combination for a fire chamber with its clinker-discharge end non-grated, of a fire chamber with a grated clinker-discharge'end, makes the claim invalid.
There is no patentable invention in the idea the lower end of the fire-pot, for the purpose of lessening the area of the grate, to enlarge the outside space. .
SAME-COMBINING OLD FEATURES.
The aggregation, of prior reversible flu,es with features· which nefore existed in 1mison in the same stove, operating together in the same way. III a stove . without reversible flues, is not a patentable combination.
BLATCHFORD, C. J. This Buit is b,rought on four patents: (1) Reissued letters patent, No.6,709, granted to Perry & Co., October 19, 1875, for an "improvement in coal stoves," the original patl;lnt, No. 50,073, having been granted to Zebulon Hunt, as inventor, September 19, 1865; (2) reissued letters patent, granted to John S. Perry, June 2,1874, for an "improvement in stoves," the original patent, No. 67,283, having been granted to Charles H. Frost, as ventor, July 80, 1867; (3) reissued letters patent, No. 6,206, Division A, for an "improvement 'in base-burning stoves," granted'to James Speq,r, January 5, .187'5, the original patent, No; 100,835;having been granted to said Spear, as inventor, March 1, 1870, and reissued to him in two divisions, Nos. 5,459 and 5,460, June 17,1873, and again reissued in two divisions, January 5,1875, No. 6;206; Division A, and No. 6,207, Division B; (4) letters patent, No. 183,545, for an "improvement in heating stoves," granted to Andrew Dickey and John S. Perry, as inventors, October 24, 1876. 1. As to the Hunt patent, the only claim alleged to have been infringed by the defendants is claim 3. That claim is this: "The