Page:Federal Reporter, 1st Series, Volume 9.djvu/606

SEAT ». WILSON. SSl �guided, may be stated as follows : Where a crediter of a bahkrupt bas a lien upon the property of a third party, as part of hia seeurity. for his debt against the bankrupt, he cannot release that lieu for a consideration without crediting such consideration on the claim against the bankrupt estate. If he could do so, he might thereby secure morethan his due, by releasing his lien against the third party for a priee paid, and afterwards enforcing his entire claim against the bankrupt estate. The faot that the appellant had a second unseoured claim against the Hawkins estate, does not alter the case. It was the prier lien that was indirectly enforced, and the release of the junior judgment was not thought of, and of course no such release could form a part of the consideration for the payment of the money. It follows that the application of the payment tb the satisfaction of the junior judgment was void. f �It is insisted that the assignee is estopped to daim credit' for the payment in question, because subsequently thereto the judgment was reviyed in a proceeding in scire fadas in the state circuit court in a cause to whioh the assignee was a party. The fact of the payment was unknown to the assignee at the time the scire facias proceeding was pending, and, of course, it was not litigated, The main purpose of proceedings in scire facias under the statute of Missouri' is to revive the judgment, and thereby to preserve the lien thereof -upon real estate. Eev. St. Mo. §§ 2732-2T38. ,' �Whatever the effect of a judgment of revival in such a proceeding may be in ordinary cases upon the parties to the original judgmenty I am clearly of the opinion that an assignee in bankruptey is not thereby estopped to insist that the judgment revived had been in part satisfied, especially in a case likethe present, where he had no knbwl- edge or notice of such part satisfaction at the time the judgment was revived. Neither the judgment debtor (the bankrupt) nor his assignee had anything to do with the payment; and it is dif&cult to see upon what principle it can be held that the latter was bound to aScertain the fact and set it up in that case. To require this would be to impose upon him not merely the duty of exercising due diligence, but much more. �The appellant alone, of all the parties to that suit, knew of the pay^ ment, and it was his interest to keep it secret, or at least tb make it appear to be a payment upon the subsequent' judgment. It would have been next to impossible for the assignee to disoover the fact, there being nothing to put him upon inquiry. It may be conceded that where, in a proceeding in a state eoijrtto revive a judgment ��� �