Page:Federal Reporter, 1st Series, Volume 2.djvu/653

 646 FEDBBAL BEPORTEE. �The proof of debt offered by Partridge states that the bank- rupts, Lorenzo Van Buren and Squire Van Buren, are in- debted to him in the sum of $15,000, being for a bond and mortgage given on property at Fishkill Landing, Dutchess county, New York. It statea that "said bond and mort- gage -were executed and delivered to me on the eighteenth day of June, 1874;" "that the property upon which said mort- gage was a lien bas been sold under the foreclosure of a prior mortgage, and was sold for the exact amount of the first mortgage, interest and costs." It states that no security ia held for the payment thereof. The deposition does not state the consideration of the bond, nor is any copy of bond or mortgage annexed to it. One of the objections taken to the claim is that the debt, if it did exist at ail, is a secured debt, and that prior to the hearing before the register an order had been entered in the foreclosure suit, referred to in the proof, setting aside the sale and directing a resale. �Such an order was shown to have been entered May 15, 1879, after the date of the proof of debt. To meet this objection it was proved that in July, 1879, Partridge executed to the assignee in bankruptcy a release and surrender of the prem- ises covered by the mortgage. It is insisted that the order of May 15th restored Partridge to the position of a secured crediter, and the subsequent release could not relate back and make his proof for an unsecured claim, sworn to in April, valid. This objection seems to me to be extremely teehnieal. If the crediter believed, when he swore to his proof in April, that his mortgage had been extinguished, and for that reason omitted at the time to make a surrender of the security, the court would, I think, on his subsequent surrender of his secu- rity, after he found that it had not been extinguished, permit him to file an amended proof, if necessary, to avoid so teeh- nieal an objection, and to enable him to participate in the proeeedings as au unsecured creditor, espeeially if, as ia claimed in this case, his security was nominal only, �There are, however, other objections to this claim much more serious. Upon the hearing a copy of the alleged mort- ����