Griner v. Butler.

It may be proper that we should refer again to the question of intention in the execution of the bond, and quote the language of Story, 1 Eq. Jur., § 498: "So, if there should be separate bonds, given with different sureties, and one bond is intended to be subsidiary to, and a security for, the other, in case of a default in payment of the latter, and not to be a primary concurrent security; in such a case, the sureties in the second bond would not be compellable to aid those in the first bond by any contribution."

But where such intention does not appear, the obligors in the second bond, as we have shown, are liable for breaches of it, either in a separate suit upon such bond, or in a joint suit against them and the obligors in the first bond, upon such bonds; and it is not necessary in this case that we inquire which, for the appellants were clearly liable upon the second bond, as a "primary concurrent security," and no question as to the joinder of parties is made. See Armstrong v. The State, 7 Blackf. 81.

The losses charged in this case all occurred under the additional bond.

We cite, as supporting the decision herein made, Owen v. The State, 25 Ind. 371; Potter v. The State, 23 id. 550, and Shook v. The State, 53 id. 403, 408. In the latter case it is said: "Finally," it is objected, that the bond could not be sued upon until the original bond, given by the guardian upon his taking out letters of guardianship, was exhausted, or the sureties thereon were shown to be worthless. The authorities are the other way."

The judgment is affirmed, with costs.

GRINER V. BUTLER.

(61 Ind. 362.)

Covenant-liability of husband on, in deed by himselfand his wife of wife's property where wife not bound.

Where husband and wife convey real estate, owned by the wife, with general covenant of warranty, although the wife is not bound, yet the husband is bound, by such covenant.

A

CTION to recover back purchase-money of real estate. The complaint alleged a warranty deed by the defendants, husband and wife, of the wife's separate real estate, with general warranty, and alleged breach, ete. Judgment against both defendants.

Griner v. Butler.

PERKINS, J. [After stating the case, and disposing of some minor considerations.] The conveyance made to Butler, being of land derived from a former husband, and made by the widow of that husband after becoming the wife of another husband, and while so his wife, was inoperative for want of right to convey. Mattox v. Hightshue, 39 Ind. 95. And this was in law known to Butler, the purchaser. But notwithstanding this, the express covenant by the grantors of the possession of such a right might be operative. Snyder v. Lane, 10 Ind. 424.

It could not be operative against Mrs. Griner, on account of the disability of a married woman to bind herself by the covenant. Was it binding upon Jacob Griner, her husband? In other words, where the husband joins in a conveyance of the separate property of his wife, such conveyance containing covenants of warranty, is the husband bound by those covenants?

At this day, under statutes in many of the States, giving a married woman the right of selling or incumbering her separate property, it is held, that, by virtue of those statutes, the wife is bound by the covenants in a deed of her separate real estate. See the cases in Wells' Separate Property of Married Women, § 590.

But at common law and in this State, the wife is not bound by such covenants (Aldridge v. Burlison, 3 Blackf. 201); while the husband is bound, if he joins in the deed and covenants, in a conveyance of the separate property of his wife. Colcord v. Swan, 7 Mass. 291; Whitbeck v. Cook, 15 Johns. 483.

Section 6 of our act touching conveyances, 1 R. S. 1876, p. 363, enacts, that "The joint deed of the husband and wife shall be sufficient to convey and pass the lands of the wife, but not to bind her to any covenant therein."

In Porter v. Bradley, 7 R. I. 538, a suit against a husband and wife for breach of covenant in a joint deed by them of the separate property of the wife, the court say: "This case does not fall within any exception to the rule, that a feme covert cannot be sued for the breach of a covenant entered into by her during coverture. It follows, therefore, here, as in the case of Hennessey v. Ryan and wife, infra, 548, determined at the present term of this court, that of strict right and according to the settled rules of pleading, the plaintiff must become nonsuit, unless on motion, he be permitted to amend his writ and declaration, by striking out the name of the feme covert defendant, and to proceed against the husband alone.

Wiley v. Pavey.

The plaintiff, upon the evidence, being entitled to recover of the defendant, Ansel, may, if he elects to amend by striking out the name of Maria W. Bradley as a co-defendant, take judgment for that sum against the other defendant, without costs."

In Buell v. Shuman, 28 Ind. 464, it was held, that where notes were given by a married woman for land purchased by her, and her husband joined her in a mortgage of the land to secure the notes, the mortgage containing a covenant by both to pay the debt, the covenant was binding upon the husband, though not upon the wife.

The judgment below is affirmed, with costs, against the husband, but as to its other provisions and terms is reversed.

A discharge in bankruptcy cannot be collaterally attacked for fraud, but the remedy is by application within two years to the bankrupt court.*

J. S. Scobey, for appellant.

S. A. Bonner, J. L. Bracken, J. D. Miller and F. E. Gavin, for appellees.

PERKINS, J. Suit by Rankin Wiley, assignee of William J. Wiley, upon a promissory note, against John J. Pavey, the maker. The note was for two hundred and twenty-one and dollars, was dated the 25th day of December, 1868, and due one day after date.

Answer, a discharge in involuntary bankruptcy on the 12th day of September, 1874.

Reply in two paragraphs: "1. That said defendant Pavey, in

*See, to same effect, Corey v. Ripley (57 Me. 69), 2 Am. Rep. 19; Way v. Howe (108 Mass. 502), 11 Am. Rep. 386. But contra, when discharge obtained after commencement of action to which it is pleaded in bar, Batchelder v. Low (43 Vt. 662), 5 Am. Rep. 311. See, also, Payne v. Able (7 Bush, 344), 3 Am. Rep. 316; Symonds v. Barnes (59 Me. 191), 8 Am. Rep. 418; Burpee v. Sparhawk (108 Mass. 111), 11 Am. Rep. 320.

Wiley v. Pavey.

said proceedings in bankruptcy in said answer and in said discharge mentioned, fraudulently, willfully and falsely failed and refused to exhibit and make a schedule of a large amount of his property, then and before the filing of said schedule in bankruptcy, owned, possessed and held by him, to wit: ten head of cattle, worth two hundred dollars; fifty head of sheep, worth one hundred dollars; six head of horses, worth six hundred dollars, and four head of mules, worth five hundred dollars; and that said plaintiff had no notice of said proceedings in bankruptcy, nor was any notice given to the payee of the note in suit. Wherefore plaintiff says said discharge was obtained by fraud and illegality, and is void." It is not averred, that notice to all the world by publication was not given. "2. And for further reply to said answer, said plaintiff says that said Pavey, in said bankruptcy proceedings mentioned in said answer, and his schedule filed therein, wholly failed, and willfully and fraudulently refused to mention or set forth among the list of his creditors in said bankruptcy the said note herein sued on, or to name the said William J. Wiley, the payee thereof, or the name of this plaintiff, the holder and owner thereof, and plaintiff avers that he had no notice of said bankruptcy proceeding, nor was he, nor was the payee of said note, notified of said proceeding according to the law of Congress in that behalf made and provided, nor did said payee of said plaintiff appear in said bankruptcy proceeding in any way or manner whatever."

The allegation is a conclusion of law, that he did not have notice according to the law of Congress. This, by implication, admits some kind of notice. General notice by publication is not denied. Demurrer to the paragraphs of reply sustained. Judgment for defendant.

It is a well-settled law in this State, that a judgment of a court of general jurisdiction, in a case requiring ordinary adversary proceedings, where it has jurisdiction of the subject-matter and person, is not void, and cannot be attacked collaterally for fraud or irregularity in the proceedings in which it is obtained. Horner v. Doe, 1 Ind. 130; Anderson v. Fry, 6 id. 76; Dilling v. Murray, id. 324. The United States District Court, sitting in bankruptcy, is such a court. Hays v. Ford, 55 id. 52.

Judgments in rem may be valid without personal notice having been served on the owner, jurisdiction having been acquired of the property. Thornton v. Hogan, 63 Mo. 143, 148. The court in

Wiley v. Pavey....

bankruptcy has jurisdiction to distribute the property, the assets of the bankrupt, among his creditors, and to discharge him. In the usual course of these proceedings, no personal judgment is rendered against a creditor, but notice is given that they may come in and be heard in these matters, if they desire to, but such notice is not a jurisdictional fact in the bankruptcy proceedings. In the application of these principles, it may be considered as established by judicial decision, that a discharge in bankruptcy cannot be impeached collaterally for any of the causes alleged in the paragraphs of the reply in this case. Thomas v. Jones, 39 Wis. 124; Thurmond v. Andrews, 10 Bush, 400; Black v. Blazo, 117 Mass. 17; Rayl v. Lapham, 27 Ohio St. 452; Pattison v. Wilbur, 10 R. I. 448. These cases hold, that the remedy for fraud and other irregularities, in obtaining his discharge by a bankrupt, must be sought by an application to the court in which the discharge was granted, to, set the same aside, which such court may do, under section 34 of the bankrupt act, at any time within two years.

The following cases are to the same effect: The Ocean National Bank v. Olcott, 46 N. Y. 12; Oates v. Parish, 47 Ala. 157; Corey v. Ripley, 57 Me. 69; s. c., 2 Am. Rep. 19; Parker v. Atwood, 52 N. H. 181.

In the case before us, it is not denied that the court in bankruptcy had jurisdiction of the subject-matter, and of the person of the bankrupt; but it is insisted, that it had not jurisdiction of the holder of the note in suit, a creditor of the bankrupt; and this because he had not received personal notice of the proceeding in bankruptcy. It is not denied that he had notice by publication, and it is held that this gives jurisdiction. Thurmond v. Andrews, supra; Thornton v. Hogan, supra.

In the latter case, it is said: "The bankrupt act requires, in addition to the notice to creditors in the schedule, that a publication be made in the newspapers of the application for a discharge. This notice is to all interested in the estate; and in Stevens v. Mechanics Bank, 101 Mass. 109; s. c., 3 Am. Rep. 325, it is held that all persons, whether noted as creditors in the schedule or not, are bound to take notice of the issuing of the warrant and the proceedings under it; that they are bound by it, whether they had any actual knowledge of it or not."

The judgment is affirmed, with costs.

Judgment affirmed.

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