Page:Federal Reporter, 1st Series, Volume 9.djvu/604

SBAY V. WILSON. 589 �Seat v. Wilson, Assignee. (Cireuit Court, W. D. Missouri. 1881.) �1. Creditors' Liens on Pboperty oB" Third Parties— Belease— Application op cionbideration. �Where a crediter of a bankrupt bas a lien on the property of a third party, as part of the security for his deht, he cannot release his lien for a consideration without crediting the apnount of the consideration on his claim. �On Appeal. �L. F. Parker, for appellant. �B. B. Kingsbwry, for appellee. �McCbaby, g. J. The controversy in this case relaies chiefly to the amount which should be allowed appellant upon a judgment in his favor, and against the bankrupt and one Hawkins, xendered in the circuit court of Phelps county, Missouri. �That judgment was upon a note executed by the bankrupt as principal, and Hawkins as surety, and the judgment was against both. Sawkins died insolvent, leaving assets enough to pay a portion only of his indebtedness. The judgment above mentioned, in favor of appellant, Seay, was a lien upon cer- tain real estate of Hawkins, deceased, as were also two other judgments,- — one in favor of one Love and the other in favor of one Branson. The appellant also held another and a subsequent judgment against Hawkins, deceased. Certain real estate of the estate of Hawkins having been sold, and the proceeds being in the hands of the administrator for distribution, it was agreed between appel- lant, Love, and Branson, all being judgment creditors of Hawkins, and entitled to share^?-o rata in such distribution, that appellant should receive $450 as his f ull share of said proceeds, and the remainder should be divided between Love and Branson. In pursuance of this agreement the said sum of $450 was paid to appellant, and by him credited upon his junior judgment against the Haw- kins estate, and not upon the prier judgment against the bankrupt and the Haw- kins estate. The district court held that the application of this payment of $450 to the satisfaction of the junior judgment was improper, and that the same was in equity a payment upon the judgment against the bankrupt and should be credited accordingly. This ruling is assigned as error. �It is said that the payment was not made by the bankrupt, nor by the assignee, nor by any one for them, or either of them. This must be admitted, but the admission does not dispose of the question. It is equally true that the payment was not made by the administrator of Hawkins, nor out of the assets of his estate. If, under the pecul- iar circumstances of this case, we were to adhere to the rule that the money paid must be applied on the debt of the party making the pay- ment, we should meet the same dif&eulty, whether we sought to apply it on the judgment against the bankrupt, or on that against the ��� �