SAVAGE'S ASSIGNEE V. BEST, 44 U. S. 111 (1845)

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U.S. Supreme Court

Savage's Assignee v. Best, 44 U.S. 3 How. 111 111 (1845)

Savage's Assignee v. Best

44 U.S. (3 How.) 111


In Kentucky, the creditor obtains a lien upon the property of his debtor by the delivery of a fi. fa. to the sheriff, and this lien is as absolute before the levy as it is afterwards.

Therefore a creditor is not deprived of this lien by an act of bankruptcy on the part of the debtor committed before the levy is made, but after the execution is in the hands of the sheriff.

The following is the entire record in the case:

"The following statement of questions and points of law which arose in this case, and the adjournment thereof into the Supreme Court of the United States for decision, was ordered to be entered, to-wit: "

"Savage had the title to the land; the plaintiff claimed under the decree of his bankruptcy, the defendant, under a sheriff's sale under an execution."

"The act of bankruptcy of Savage was committed on 27 April, 1842; the petition of his creditors was filed against him in the district court on 25 day of June, 1842, and he was declared a bankrupt on 26 October, 1842; the plaintiff was appointed the assignee, and this is his title."

"An execution of fieri facias on a judgment against the estate of Savage was delivered to the sheriff on 9 April, 1842, before the act of bankruptcy, and was levied on the land on the day of before the petition; but after the act of bankruptcy the defendant purchased at the sheriff's sale, had his deed, and this was his title."

"The question was, has the plaintiff, by the decree of bankruptcy and its relation back to the act of bankruptcy, the elder and better title, or has the defendant, by the prior delivery of the execution into the hands of the sheriff, and his levy of it before the petition was filed, the prior and superior title?"

"On this question the judges were divided and opposed in opinion; whereupon, on motion of the counsel of the plaintiff, the question is stated and ordered to be certified to the supreme court for decision. "

Page 44 U. S. 118

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