Page:Federal Reporter, 1st Series, Volume 5.djvu/71

 :n be kinnb. 59 �In re Kinne, Bankrupt. �(District Court, D. New Jersey. Decenibor 6, 1880.) �1. BASBaïUPTCI — SeCDRED CREDITOB — PhOPBETT SoLD BtTBJBCT TO �MoBTOAQE — Ubv. 8t. 4 5075. — A. creditor may prove his debt as unse- cured, and consent to the discharge of the bankrupt, where the prop- erty of the debtor, after being mortgaged for the debt, was subse- quently sold undcr au execution subject to such mortgage.— [Ed. �In Bankruptcy. �On Specifications agaînst Diseharge. �NixoK, D. J. Several specifications bave been filed against the discharge of the bankrupt in this case, but they ail seem to grow out of or revolve around one transaction, to-wit: the proof of a secured debt by one of the consenting creditors without surrender of the security. The facts were these : One Michael Van Iderstine, in the month of November, 1872, Bold to the bankrupt a tract of land in the city of Paterson, and accepted his bond for $5,000, a portion of the consider- ation money, the payment of which was secured by a mort- gage upon the premises purchased. The property was sub- sequently sold by the sheriff of the county of Passaic as the property of the bankrupt, upon executions issued upon two judgments against him, bnt aold subject to the above-recited mortgage. Cornelius Hardenburgh became the purchaser, and received from a sheriflf a deed for the premises on the twenty-fourth of November, 1877, and has since been the owner. Michael Van Iderstine departing this life, Tennis Van Iderstine became the. aoting executor of the estate, and held the said bond of the bankrupt, secured by the real estate of Hardenburgh. He made no surrender of the mortgage, but proved his bond as the unsecured debt of the bankrupt, and afterwards signed a power of attorney, authorizing the attorney named to consent to the discharge of the bankrupt for the payment of his debts. �The single question presented is -whether the holding of security for a debt, on property not owned by the bankrupt, prevents the creditor from proving his debt as unsecured and ����