Page:Federal Reporter, 1st Series, Volume 9.djvu/49

 34 FEDERAL REPORTER. �settlemeiit ; sabject to all defeasances and contingeneies iii her favor, or in favor of any third. person, for that matter; subject to the liens of ii meebanic, or a factor, or the like; subject to the right of resois- sion of a contract for ftaud.in some instances; subject to the estoppels on the bankrupt, where they do not grow ont of some fraud on cred- itors; andjgenerally, subject to all trusts, liens, and burdens existing at the timie.' In some cases the circumstances were such the assignee took nothing,. and in some only the surplus after the burdens were satififiedi -Browav^ Heathcote, 1 Atk. 160!j Scott y. Surinan, Willes, 400; Mii/oj-d T, MitfofrcV, 9 Yes. &%; Re Dom;, 6 N. B. E. 10; Rogers y. Winsor, Id. 246; Re McKay, 1 Low. 345; Re Faxon, Id. 404; Re Griffiths, la. 431; Goddard v. Weaver, 1 Woods, 257; Re Hester, 5 N. B. E. 285; Eberle Y..M8her, 13 Pa. St. 526; Eshdman v. Shuman, Id. 561 ; Keller v. Denmead, 68 Pa. St. 449; Ontario Bank K lfM??i/brd,. 2 Barb. Ch. 596. �Here, again.our bankuuptcy statutes have retjognized and declared this prinoiple, and provide that no trust estates shall pass, and that all liens and rights of third persons shall be preserved, so that the assignee either does not take at all, or else takes subject to the liens and burdens. Eev.iSt. 5053, 50Y5, 5044, and notes; Bump, Baiik- ruptcy, (lOth Ed;) Applying the principle h&xe, the assignee took the tenancy^by the curtesy initiate as it existed at the date of the petition in. bankruptcy, subject to the right of the wife, if she sur- vived her'husband, to defeat his estate; or, more accurately, subject to the determination that would corne by his ideath, and subject to her rights under this Tennessee statute to re main in possession during her life, jointly with her husband, and that they should, during that time, en]oy the estate without disturbance by his creditors or his assignees of any kind, whether in bankruptcy or any other, unless she, by her deed according to law, should consent to give up the land. And it is possible that, by joint deed of the husband and wife, the assignee'» title might have been defeated, even after the bankruptcy, in the same way as is sometimes done where she bas a power of appointment; but it is not necessary to decide that here, as no BUiih conveyance was made, and it is well settled that where she bas the power to defeat his estate by appointment or conveyance of any kind, her failure to exercise it preserves. his rights. The statute operates as a settlement upon her to that extent, but no further. And it is to be observed that it does not, as some statutes do, create a separate estatein the wife, nor destroy his estate in his wife's lands. ��� �