Page:Federal Reporter, 1st Series, Volume 9.djvu/387

 372 FEDERAL EBPOBTEB. �brother or near kin of Alexander Crawford, obtains a judgment against Eobert P. Lewis and pretends to docket the same, which judgment was there- after, Pebruary 4, 1878, assigned to the defendant Alexander Crawford. Upon this judgment the said Alexander Crawford issued execution, which was levied on this property in township 29, and the same was sold April 8, 1879, he biiying it in for the sum of $1,800. Prior to this sale, however, the said Alexander Crawford had due notice of the mortgage claim of plaintiii upon this land. Prior to said execution and sale R. P. Lewis commenced proeeed- ings in bankruptcy for a discharge from his debts, to-wit, on August 31, 1878; bis discharge being granted April 15, 1879, only seven days af ter the sale of said property. During the pendency of the proceedings in bankruptcy, and prior to the execution and sale, the said Alexander Crawford proved up his entire claim in the bankrupt court, without any reference to his lien upon this prop- erty, making affldavit that he had no lien upon this or any other property. �E. Webb, for plaintif. �B. B. Galusha, for defendant Crawford. �Nelson, D. J. I have exalniried this case, and find notMng new presented -which can reverse the decision already made and set aside the order for a deeree. The defendant Crawford proved his debt as an unsecured claim, and made aflSdavit to that effect in the form prescribed by law. Subsequently he issued execution on the judg- ment, pending the bankruptcy proceedings, and attempted to collect this claim, which was in judgment and a lien upon real estate at the time, as he now insists, when he made and filed his proof. If he was a crediter having a lien, by proving his debt secured thereby to the full amount he waives his lien, and relinquishes it. Such bas been the ruling even in respect to mortgages upon specifie property. Before a secured crediter can prove his full claim as an unsecured debt he must surrender the security. There is no distinction made in the kind of security. 1 B. R. e86, 400, 147; 8 B. E. 241. Craw- ford could have refused to prove his debt or appear in the bankruptcy court, and looked to the lien which he elaims his judgment gave him ; and unless the assignee took action and assumed control of the property on which the lien attached, might have subjected it to the discharge of his debt. But he did not do this. He aeted upon the theory that he could prove his debt as unsecured, and at the same time enforce the lien which the judgment gave him. There is no support for such a claim. 95 U. S. 764. �The complainant's equity is superior, and the order for a deeree must stand. ��� �