The present cause was triable at the January term of the state court. The defendant had the power and the right to defeat the trial by serving an amended answer. The exercise of that right did not, however, enlarge his time for removal. There was an issue which it was competent for ei.ther party to bring to a hearing, and which the plaintiff sought to bring to a trial. The plaintiff was prevented from trying the cause by the act of the defendant. It does not avail the defendant that the practice of the court gave him the right thus to defeat the plaintiff from trying the cause. to remand is granted. The
PIERSON, Sheriff, and others.
(Circuit Court, D. Nebraska. May, 1881.) 1.
The lien of a judgment is not lost by a failure to prove the claim of the judgment creditor in subsequent proceedings in the bankruptcy court against the judgment debtor.
2. SAME-PRIORITY OF LmN OF JUDGMENT OF UNITED STATES.
A judgment in favor of the United States is not prior and paramount to ll. lien created upon the debtor's property existing before the proceedings in bankruptcy, .which give the statutory priority to a debt due to the United States.
Bill in Equity. Towle et Reavis, for complainant. Schoenheit et Thomas and S. A. Fulton, ·for respondents. MCCRARY, C. J. By the law of Nebraska a judgment rendered by the district court of that state is a lien upon the real estate of the defendant in such judgment, situated within the county where rendered. Assuming that a judgment of the United Sts,tes district court is a lien in like manner and to the same extent as if rendered by a state court of general jurisdiction, it follows that the judgment of the Springfield Manufacturing Company, being earliest in date, is the first lien, unleElS it has been divested or displaced by the proceedings in bankruptcy against Cameron, the judgment debtor, or is held subordinate to the latter judgment upon the ground that the latter is a judgment in favor of the United States and entitled to priority on that account. It will be observed that the judgment of the Springfield Manufacturing Company was obtained over two years before the commence-
ment of the proceedings in bankruptcy, and that there is no charge of fraud or collusion in obtaining the rendition thereof. Did the failure of the plaintiff in said judgment to prove its claim in the bankruptcy court deprive it of its lien? I think not. There is high authority for the proposition that the lien of a creditor on the real estate of a bankrupt is not lost by his failure to prove his debt. Assignee of Wicks v. Perkins, 1 Woods, 888; 13 N. B. R. 280. The creditor in such a case may rely upon his security and omit to prove his claim in bankruptcy, and by so doing he will lose only his claim against the general estate of the bankrupt. The law did not require the lienholder to prove his debt in order to save his lien. Having a judgment in the state court by which his lien was established, he had no occasion to apply to the bankruptcy court for aid in its enforcement. Whether the judgment creditor in this case could have caused execution to issue and had his judgment enforced by sale pending the bankruptcy proceedings may admit of some question, since the esi;ate was in a certain sense in custodia legis. In the case above cited, Judge Woods expressed the opinion that the lien could have been enforced either before or after the end of the proceedings in bankruptcy. However this may be, I am clearly of opinion that after the proceedings in bankruptcy had terminated, there was nothing in the way of the enforcement of the lien of the judgment in the state court by execution and sale. Freeman, Judg. 28, 29; Second Nat. Bank v. Nat. Bank, 14 Am. Law Reg. 281. The question remains whether the judgment in favor of the United States, under which complainant purchased, was a lien prior and paramount to that created by the earlier judgment in favor of the Springfield Manufacturing Company. The affirmative of this proposition must bti maintained, if at all, under the provisions of sections 846 and 5101 of the Revised Statutes of the United States. The first of these provides that "whenever any person indebted to the United States is insolvent - - - the debts due the United States shall be first satisfied," and this priority is declared to extend to cases in which an act of bankruptcy is committed. Section 5101 provides that in the order for a dividend in a bankruptcy proceeding, after paying certain costs and expenses, "debts due the United States shall have priority." It may now be regarded as settled that the priority of the United States, given by these statutes, "does not overrule any liens upon the debtor's property which existed before the event occurred which gives the statutory priority; that is, before the insolvency." U. S. v. Lewis,
HEBERT V. MUTUAL LIFE INS. 00.
13 N. B. R. 38; Conard v. Ins. Co. 1 Pet. 438; Brentv. The Bank; lOr; Pet. 596. In so far as the early case of Thelusson v. Smith, 2 Wheat. 396, may have asserted a different doctrine, it is o\'erruled by the later decisions of the supreme court of the United States above cited. As the lien of the judginents in favor of the Springfield Manufacturing Company existed more than two years before the insolvency of Cam eron, it follows, by the rule above laid down, that it is not displaced by the subsequent judgment in favor of the United States.. The exceptions to· the answer are overruled, and its averments being admitted. there must be decree for respondents.
HEBERT V. MUTUAL LIFE
(Circuit Court, D. Oregon. JUly 19, 1882.)
EQurrY-8l'EOIFlC PERFORMANCE OJ!' CONTRACT.
Equity has jurisdiction to enforce the performance of a contract to deliver a policy of insurance, and having taken jurisdiction for that purpose, will, in case there has been a 1088 or death, retain it for the purpose of decreeing payment of the policy.
A contract to issue a plain life insurance policy upon the life of the appli. cant for $15,000, payable to his wife, according to the form in use by the company, is sufficiently certain to be enforced; and if there is any extrinsic reason why it should not be enforced, as that it was procured by fraud or falsehood, it must be set up as a defence.
In Equity. Specifio performance. William H. Holme8, for plaintiff. Thomas N. Strong, for defendant. DEADY, D. J. This suit is brought to enforce a contract for the delivery of a life insurance policy for the sum of $15,000, and for a decree that the defendant pay the same to the plaintiff. The bill alleges that the defendant, on June 11, 1878, and since, was and has been a corporation organized under the laws of New York, and doing a life insurance business in Oregon; that on said day Oliver Hebert, of Marion county, Oregon, the husband of the plaintiff, applied to the agents of the defendant in said county for insurance upon his life of $20,000, payable to the plaintiff, and paid them the first quarter's premium thereon, to-wit, $105.60, which sum was by them forwarded to the defendant upon the condition "that if the