Opinion
No. 27411.
December 17, 1928. Suggestion of Error Overruled February 4, 1929.
1. BANKRUPTCY. Judgment on provable debt existing when debtor was adjudged bankrupt, but rendered before final discharge, is canceled by discharge, and bankrupt may have perpetual stay of judgment ( Bankruptcy Act [11 U.S.C.A.]).
Under Bankruptcy Act (11 U.S.C.A.), judgment entered against a debtor upon a provable debt existing at time he was adjudged a bankrupt, but rendered before his final discharge in bankruptcy, is canceled by such discharge, and, after discharge, bankrupt has right to perpetual stay of judgment.
2. BANKRUPTCY. Where bond for forthcoming of cotton distrained was in force when tenant was adjudged bankrupt, and judgment against tenant was rendered before discharge, bankrupt had right to stay of judgment ( Bankruptcy Act [11 U.S.C.A.]).
Where landlord caused issuance of landlord's writ of attachment for rent and tenant executed bond for forthcoming of cotton distrained, and tenant later was adjudged a bankrupt, and landlord's judgment against tenant was rendered before his discharge in bankruptcy, tenant had right to stay of judgment under Bankruptcy Act (11 U.S.C.A.), since debt created by forthcoming bond was provable under Bankruptcy Act.
3. BANKRUPTCY. Landlord and tenant. Where tenant gives forthcoming bond and disposes of property, landlord's lien is released from property distrained, and permitting tenant to set up discharge in bankruptcy did not deprive landlord of benefit of lien.
Where tenant gave bond for forthcoming of cotton distrained and disposed of cotton, landlord's lien was released from cotton distrained, and permitting tenant to set up his discharge in bankruptcy in satisfaction of judgment on forthcoming bond did not deprive landlord of benefit of landlord's lien on cotton, since lien had been released.
4. BANKRUPTCY. Adjudication in bankruptcy is no bar to creditor's action against bankrupt to reduce claim to judgment.
An adjudication in bankruptcy is no bar to an action against bankrupt by a creditor to reduce his claim to judgment.
5. BANKRUPTCY. In creditor's action against bankrupt, it is discretionary with state court whether to suspend action during bankruptcy proceedings.
In action by creditor against bankrupt to reduce his claim to judgment, it is discretionary with state court whether to suspend action to await further proceedings in bankrupt court.
6. JUDGMENT. No judgment is conclusive of matter not required to support judgment.
No judgment is conclusive of any matter not required to support judgment, and, if language is general, it will be restrained to issues made in case and to subject-matter under consideration by court.
7. JUDGMENT. Judgment purporting to affirm particular fact or rule of law immaterial to issues will not conclude parties in reference thereto.
Where judgment purports to affirm particular fact or rule of law, yet, if such fact or rule of law was immaterial and collateral to issues in case, and controversy did not turn upon it, judgment will not conclude parties in reference thereto.
8. JUDGMENT. State court's judgment in creditor's action against bankrupt during bankruptcy proceedings, reciting bankrupt had not been adjudged bankrupt, was not res judicata of question in suit to enjoin execution of judgment after discharge in bankruptcy.
In action in state court by creditor against bankrupt to reduce his claim to judgment, in which bankrupt suggested that bankruptcy proceedings were pending, judgment reciting absence of proof that bankrupt had been adjudicated a bankrupt and adjudging that he had not been so adjudged was not res judicata of question in suit by bankrupt to enjoin execution of judgment rendered in state court after discharge in bankruptcy.
9. BANKRUPTCY. To constitute enforceable "new promise" by bankrupt, there must be clear, unequivocal recognition and renewal of debt as binding obligation.
In order to constitute an enforceable "new promise" on part of bankrupt debtor, there must be clear, distinct, and unequivocal recognition and renewal of debt as a binding obligation.
10. BANKRUPTCY. Bankrupt's inducing judgment creditor to execute waiver of judgment lien did not constitute promise to pay debt discharged and did not waive discharge.
Fact that bankrupt induced judgment creditor to execute waiver of lien of his judgment to enable bankrupt to secure renewal loan on lands did not constitute an express promise on part of bankrupt to pay debt, and was not a waiver on bankrupt's part of his discharge in bankruptcy in so far as judgment was concerned.
11. APPEAL AND ERROR. That complainant suing to enjoin execution of judgment discharged by bankruptcy proceedings had adequate remedy at law did not authorize reversal; there being no other error ( Constitution 1890, section 147; Hemingway's Code 1927, section 3401).
That complainant suing to enjoin execution of judgment discharged by bankruptcy proceedings had plain and adequate remedy at law did not authorize reversal of decree by supreme court, under Constitution 1890, section 147, and Hemingway's Code 1927, section 3401 (Code 1906, section 4920), where there was no other error in rendition of decree.
APPEAL from chancery court of Sunflower county, HON. J.L. WILLIAMS, Chancellor.
Franklin, Easterling Fox, for appellant.
Had the chancery court of Sunflower county jurisdiction to issue the injunction against a judgment rendered by the circuit court of the Second district of Tallahatchie county? This is manifestly a collateral attack upon said judgment. The bill of complaint proceeds upon the theory that the judgment of the circuit court of the Second district of Tallahatchie county is null and void.
However, the circuit court of Tallahatchie county had jurisdiction of the subject-matter and of the parties and the said judgment having not been appealed from is valid and binding, and conclusive upon the parties and privies thereto. Being a valid judgment it cannot be set aside by any other court of equal dignity, its judgment can only be reversed upon proper appeal or pleadings therefor by the supreme court of this state.
Appellee showed in his bill that he was adjudged a bankrupt on January 12, 1925, and attempts to plead his discharge in bankruptcy as a release to all debts which existed on the day of adjudication.
At the time the case was tried by the circuit court of the Second district of Tallahatchie county, Mississippi, upon which the judgment was rendered attacked in this cause, it was found as a fact by the court, because of the negligence by the said A.J. Hill, or his counsel, to produce the proper proof evidencing the same, that he had not been adjudged to be a bankrupt by any court of competent jurisdiction. The issue having been raised and decided by a court of competent jurisdiction, having jurisdiction of the subject-matter and the parties, is binding upon the parties and cannot be set aside on any collateral attack. The remedy, if any, was before the court that rendered the judgment or by direct appeal to the supreme court.
Appellee is seeking in this suit to overthrow what was adjudicated by the circuit court of the Second district of Tallahatchie county, even though erroneous and contrary to the fact, the said Hill having failed to offer proper evidence of such fact, said judgment is conclusive and binding upon the said Hill and he is estopped to relitigate in the chancery court of Sunflower county the same point that was decided adversely to him in that court; the judgment of that court is conclusive and prohibits Hill from contradicting and denying in this proceeding the facts and law found in that case.
If the judgment of the circuit court of Tallahatchie county is a valid judgment its execution cannot be enjoined by the chancery court of Sunflower county. Appellee had full, complete and adequate remedy at law in the other proceeding. The chancery court of Sunflower county had no jurisdiction to enjoin the process of another court under a valid judgment of said court. Equity may enjoin the execution of a void judgment at law but cannot enjoin the execution of a valid judgment. See Bruister v. Tansil, 134 Miss. 705, 99 So. 259; Bates v. Strickland, 139 Miss. 636, 103 So. 432. This court will observe that this is not a case where judgment was rendered against a party who afterwards was adjudged a bankrupt, but in this case the appellee here, by his pleadings in the circuit court of the Second district of Tallahatchie county, Mississippi, called into question whether or not a bankruptcy proceedings was pending in the court of the United States for the Delta Division of the Northern district of Mississippi, in which appellee had been adjudicated a bankrupt prior in time to the rendition of said judgment. The parties took issue upon this fact, to-wit: whether or not there was a proceeding pending in said United States court wherein appellee was duly adjudged to be a bankrupt; evidence was taken upon this point which was raised by the pleadings and the court in that case found and adjudged: ". . . that the said A.J. Hill has not heretofore been adjudged to be a bankrupt by any court of competent jurisdiction."
It may be argued by counsel for appellant that it was not necessary for Hill to aver and prove an adjudication in bankruptcy prior to March 2, 1925, and that the discharge in bankruptcy was sufficient. In order to show a discharge in bankruptcy, the said Hill is called upon to prove a proceeding which had been begun in the said court on January 12, 1925, which the circuit court found had not been begun and was not pending. In other words, appellee's whole case is based upon the averment of facts which were properly pleadable in the other case and which he did plead but failed to prove. It is elementary law that judgments are binding upon the parties thereto and their privies; and, that once a court of competent jurisdiction has passed upon and settled an issue, right or wrong, black or white, straight or crooked, that issue is thereafter binding upon the parties of record to said judgment, so long as said judgment remains in full force and effect. See Von Zondt v. Braxton, 149 Miss. 461, 115 So. 557.
Can the appellee maintain his suit for injunction in the chancery court to enjoin the execution upon a judgment of a circuit court when he had a plain, adequate, full and complete remedy at law? It is a general rule laid down in the textbooks and encyclopedias that the extraordinary writ of injunction will not be granted where there existed at the time, a plain, adequate, complete remedy at law. 23 Cyc. 1236; 22 Cyc. 796; Edward Hines, Trustee, v. Knox, 144 Miss. 560, 108 So. 907; Grenada Bank v. Waring, 135 Miss. 226, 99 So. 681; Gum Carbo Co. v. New Orleans German Gazette, 90 Miss. 117, 43 So. 82; 7 C.J. 414.
Kohn Weil Co. v. Weinburg, 110 Miss. 275, 70 So. 353, was a suit somewhat similar to the one here. Appellants in that suit filed suit in a justice court and obtained judgment against A. Weinberg, and the said Weinberg appealed to the circuit court. Pending the appeal, Weinberg was adjudged a bankrupt and when the case was called for trial his application for a discharge was pending before a referee. He filed a petition in the circuit court asking that all proceedings in his appeal case be stayed until his petition for discharge was acted upon. In response to this application the appellant produced an order granted by the district judge sitting in bankruptcy, authorizing appellant as plaintiff to proceed to judgment in that suit. The circuit court thereupon overruled the application to stay the proceedings and the case proceeded to trial, and judgment was rendered in favor of appellant and against Weinberg. Execution was then issued on said judgment against the sureties and was in the hands of the sheriff when Weinberg filed suit in the chancery court reciting the above facts, and averring that since the rendition of the judgment by the circuit court, Weinberg had been discharged from bankruptcy and praying for a cancellation of the judgment as to all the judgment debtors and for an injunction against the execution of the same. Appellant answered the same, denying the allegation that the judgment was void, and filed a motion to dissolve the injunction and the cause was heard upon the bill, answer and agreed statement of facts, disclosing that the discharge was granted after the trial of the appeal in the circuit court. The difference between that case and the case at bar is, that in the instant case the circuit court adjudicated adversely to appellee's contention that Hill was not in bankruptcy and no proceedings in which Hill was or had been a bankrupt were pending in the Federal court. Inasmuch as in the Kohn-Weil case the decree sustaining the injunction, which was sued out before the discharge in bankruptcy, was reversed, and the bill dismissed, it is to be assumed that the reason was that the appellee in that case had their remedy at law, since the court says that there had been no change in the status of the parties between rendition of the judgment and the filing of the bill of complaint, and that if there was any error in the circuit court proceedings any party aggrieved had the right to appeal. See, also, Alabama, etc., Ry. Co. v. Crawley, 118 Miss. 272, 79 So. 94. The above case clearly points out that a party, against whom judgment has been rendered prior to his discharge upon any claim provable in bankruptcy, an adequate and complete remedy at law and therefore had no right to maintain this injunction.
Is the obligation of Hill, as principal, on the replevin bond for the restoration of the cotton seized, such a claim as was properly provable in bankruptcy, and if so, was it released by his discharge in bankruptcy? In other words was it a direct or contingent liability within the meaning of the bankruptcy acts? It will not be gainsaid or disputed that Thompson had a landlord's lien, upon the fifteen bales of cotton seized by the sheriff under said attachment writ against Hill. The adjudication of the bankruptcy of Hill did not release Thompson's lien. The bankruptcy act does not interfere with any existing lien over four months old; in other words, Thompson was entitled to have this cotton levied on by the sheriff, sold to satisfy his rent.
The liability for the rent, that is, the personal liability of Hill, is one thing and the liability of the cotton therefor is another thing; regardless of Hill's bankruptcy, the cotton could still have been sold to satisfy Thompson's rent demand. We go further, if this cotton had been found after the adjudication in bankruptcy, wherever found it was liable for this rent and could have been levied upon and sold by the sheriff to satisfy Thompson's demand.
This brings us to the proposition whether or not his claim upon the redelivery bond of Hill is, or was, such claim as was provable in bankruptcy, or a claim which could be affected by Hill's discharge. We say, that the liability of Hill and the sureties for the restoration of the cotton to the sheriff is a contingent liability, pure and simple. The liability of Hill is contingent upon the redelivery of the cotton to the sheriff, or upon the sheriff failing to find the cotton, as the cotton would still be liable if found, to satisfy the judgment for rent. The liability of Hill under the bond and his sureties thereon is one kind of liability and the liability for the rent another liability of a different kind.
The personal liability of Hill for the rent would be enforceable by action on contract. A suit on the bond for return of the property would be a suit in trespass for trover and conversion. In the first case the measure of liability would be the rent; in the second case the measure of the liability is the value of the cotton at the time the same was due to have been restored. Coleman v. Bowman, 135 Miss. 137, 99 So. 465; Gilleylen v. Stewart, 72 Miss. 262, 16 So. 495. Whether Hill received the cotton and bonded it prior to his adjudication in bankruptcy or afterwards, Thompson's claim against Hill on the redelivery bond for the restoration of the cotton upon which he had a lien was not a certain fixed liability provable in bankruptcy; and Hill's discharge in bankruptcy would not discharge his liability for the value of the cotton which he received and refused to restore. Jacobson Wolffe Co. v. Horne, 52 Miss. 185; Bush v. Cooper, 26 Miss. 599, 59 Am. Dec. 270; 7 C.J. 399; Goding v. Roschenthal, 180 Mass. 43, 61 N.E. 222.
Has Hill waived and lost his right by acquiescence and securing the waiver of the judgment lien held by Thompson? The agreed statement of facts shows that in June, 1927, that said Hill, through his attorneys, took up with C.H. Thompson, the request to execute a waiver of the said judgment lien, so as to allow the said Hill to secure a renewal loan from the Liberty Mortgage Company on his farm lands near Rome, Sunflower county, Mississippi; and that Thompson waived said lien as to said farm lands for said purpose, and said instrument is duly filed in book P-7, pages 394-95 of the land records in the office of the chancery clerk at Indianola, Sunflower county, Mississippi. We cannot conceive of any facts that would be stronger to show a ratification and an acknowledgment of the validity of Thompson's lien and the validity of the judgment.
Roberson Cook, for appellee.
The discharge in bankruptcy of appellee Hill, operated as a release discharge or satisfaction of the judgment obtained by appellant prior to such discharge in bankruptcy. It seems to us that the above proposition is the sole and only proposition involved in this suit. If the discharge in bankruptcy satisfied the judgment obtained by the appellant, Thompson, then his right to have execution thereon as against the appellee, Hill, ceased and nothing could bring this dead judgment back to life except possibly a promise in writing to pay the obligation. 7 C.J. 398; Judgments. A discharge of bankruptcy releases the bankrupt from liability on a judgment not based on fraud or willful and malicious injuries to person or property, and the bankrupt has an absolute right to have execution on such judgment perpetually stayed, or under some statutes the judgment itself may be cancelled in proceedings had for that purpose. See, also, 3 R.C.L. 318; Hill v. Harding, 130 U.S. 699, 32 L.Ed. 1083. In Wolf v. Stix, 99 U.S. 1, 25 L.Ed. 309, the supreme court of the United States had before it the question of the effect of a discharge rendered after judgment in the state court. The suit was one like the case at bar. Wolf, the bankrupt, filed his bill in equity to enjoin enforcement of a judgment rendered against him by the state courts of Tennessee after he had been discharged in bankruptcy. The court will observe that Wolf's liability, if any, was based upon an attachment bond given by him in favor of Louis Stix Company. Subsequent to his giving the bond he was adjudicated a bankrupt and the first question for decision was whether or not his liability on the attachment bond was such as was dischargeable by the Bankrupt Act. It was contended that the debt of Wolf was not discharged because it was a debt created by fraud. The facts are almost identical with the case at bar because certain goods had been surrendered to Wolf upon his making a bond which provided that he would either return the goods or pay their value. The court after disposing of the contention that the debt was created by fraud, says:
"The debt thus created was provable under the Bankrupt Act. It was payable upon the happening of an event which might never occur, and was, therefore, contingent. The bond was in full force when the petition in bankruptcy was filed. The sum to be paid was certain in amount. Whether the event would ever occur which would require the payment was uncertain; but if it did occur, the amount to be paid was fixed. . . ."
"As, therefore, the debt of Wolf was not created by fraud, and was provable under the act, it follows that his discharge released him from his liability on the bond. The discharge would have been a bar to a judgment against him, if, before the judgment it could have been pleaded as a defense to the action. It follows that, under the practice which prevails in Tennessee in this class of cases, Wolf is entitled to the relief he asks for himself."
In Boynton v. Ball, 121 U.S. 463, 30 L.Ed. 985, the supreme court of the United States was presented with this identical question. The discharge of the bankrupt in that case was not obtained until after final judgment rendered by the state court. The court compares the facts of Boynton v. Ball, supra, with the facts of Dimock v. Revere Copper Company, 117 U.S. 559, 29 L.Ed. 994. In the Dimock case the discharge was rendered before final judgment in the state court and the supreme court of the United States held that in such cases it was incumbent upon the bankrupt to plead in the state court his discharge, and his failure so to do foreclosed him thereafter from pleading the same. The proposition was advanced in Boynton v. Ball, that the failure of the bankrupt to apply to the state court for, and obtain a stay of the proceedings against him pending his discharge to likewise foreclose his right to plead that discharge. The court in replying to this proposition, used the following language. "If for any of these reasons, or for others, he permits the case to proceed to judgment in the state court, by failing to procure a stay of proceedings under the provisions of this section of the bankrupt law, or the assignee in bankruptcy does not intervene as he may do. Hill v. Harding, 107 U.S. 631. He does not thereby forfeit his right to plead his final discharge in bankruptcy, if he shall obtain it, at any appropriate state of the proceedings against him in the state court. And if, as in the present case, his final discharge is not obtained until after judgment has been rendered against him in the state court; he may produce that discharge to the state court and obtain the stay of execution which he asks for now."
In Ala., etc., Ry. Co. v. Crawley, 118 Miss. 272, 79 So. 94, the identical question was presented to our supreme court and the court there points out that a judgment rendered during the pendency of bankruptcy proceedings and prior to the final order of discharge is as to the bankrupt satisfied and that relief will be granted to the judgment debtor.
This court, in two recent cases, has held that it is discretionary with the lower court as to whether or not a stay of the proceedings shall be had pending the application for discharge. We refer to Orgill Brothers v. Coleman, 111 So. 921; Cantrell v. Peugh, 149 Miss. 21, 115 So. 116. We understand the rule to be from those two cases and from the Statute that after adjudication and before discharge, it is the privilege of a state court either to grant a continuance of a cause on the application of the bankrupt or not, within the discretion of the court. It can render the judgment so that the liability of the bankrupt will be fixed in the bankruptcy proceedings, or continue the cause within its discretion, to-wit: the determination of the question by the bankrupt court of the right of the bankrupt to a discharge. If it denies the continuance and renders a judgment, it does not and could not have the effect of denying the bankrupt of the right granted him under the Federal Statute of Bankruptcy if, as and when his discharge is given him by the Federal court.
We fully recognize the doctrine of res adjudicata but we have always understood that in order for a question to be res adjudicata it must be responsive to the pleadings and necessary to the judgment rendered. It cannot be upon a purely collateral question. The proceeding in the state court, was one to collect a debt and the only question that could be presented to that court upon the merits of that cause was whether or not the appellee, Hill, had a defense to that proceeding at that time which he could then plead. He had no defense and the court accordingly, properly rendered judgment against him and his sureties. In Gladney v. Gladney, 106 So. 786, this court held that the determination in an action for rent of questions incidental to that of whether or not any rent was due, as for instance the value of improvements, is not res adjudicata thereof as only the questions presented by the pleadings can be ascertained. See Yazoo, etc., Ry. Co. v. Levy, 147 Miss. 831, 112 So. 786; 2 Freeman on Judgments, 1474.
The appellant seems to rely upon Kohn, Weil Co. v. Weinberg, 110 Miss. 275, 70 So. 353. We cannot see any consolation of the appellant in this case. Judgment was rendered by the circuit court in that case against the bankrupt and his sureties before the discharge was granted. Thereafter, before the discharge was granted the bankrupt and his sureties sought to enjoin execution. Strangely enough, it was conceded in that case by all parties that the bankrupt was released even though the suit was filed before discharge granted. The court did not pass upon this specific question for the reason that no property of the bankrupt had been levied upon by the sheriff and the bankrupt sought no real relief. As a matter of fact, in our opinion, the bankrupt would not have been entitled to any relief because of the premature filing of his suit.
It is said that the liability of Hill on the forthcoming bond in the attachment proceeding was not released by his discharge in bankruptcy. This question was decided adversely to the appellee in Wolf v. Stix, supra, in a case identical with the case at bar. It held that the principal in the bond, to-wit: Wolf, was discharged by his discharge in bankruptcy. The primary liability of Thompson to Hill was his obligation to pay the rent evidenced by the note. It is immaterial, however, in our opinion, as to whether or not this court determines it was an obligation to pay rent or the obligation evidenced by his bond for the reason that in either event, his discharge operates on the judgment. Both liabilities were in existence at the time of his adjudication in bankruptcy and both liabilities were provable under the Bankrupt Act, and are, therefore, discharged.
The proposition is also advanced that the appellee was not entitled to prosecute his suit in the lower court for the reason that he had a full, adequate and complete remedy at law, and, therefore, equity would grant him no relief. There are two answers to this proposition. First, he had no relief at law which was either full, adequate or complete; and secondly, this court is not concerned with this question for the reason that the lower court took jurisdiction of the cause as presented by the bill, and by the provisions of section 147 of the Constitution. "No judgment or decree in any chancery or circuit court rendered in a civil cause shall be reversed or annulled on the ground of want of jurisdiction to render said judgment or decree, from any error or mistake as to whether the cause in which it was rendered was of equity or common-law jurisdiction; but if the supreme court shall find error in the proceedings other than as to jurisdiction, and it shall be necessary to remand the case, the supreme court may remand it to that court which, in its opinion, can best determine the controversy.
Argued orally by Lamar F. Easterling, for appellant, and J.W. Bell, Jr., for appellee.
Appellee filed the bill in this cause in the chancery court of Sunflower county against appellant and the sheriff of that county, to enjoin the execution of a judgment in favor of appellant against appellee, rendered in the circuit court of Tallahatchie county. A temporary injunction was issued, and the cause was heard on the original bill and exhibits thereto, answer and proof, resulting in a decree making the injunction perpetual. From that decree, appellant prosecutes this appeal.
There was no controversy about the facts of the case. They were agreed to between the parties in writing, and such written stipulation was made a part of the record, and is as follows (leaving off the formal parts and exhibits therein referred to):
"A.J. Hill, on December 22, 1922, executed his promissory note payable to C.H. Thompson for one thousand five hundred dollars due December 1, 1924. The indebtedness evidenced by said note constituted the rental for the year 1924 on the Edmondson Place in Sunflower county, leased by the said Thompson to said Hill. In October, 1924, said Thompson, by proper procedure, caused the issuance of a landlord's writ of attachment for rent, and caused the same to be levied upon fifteen bales of cotton grown on said leased premises during said year 1924. Said Hill made bond for said cotton, as provided by law, and the papers in said matter were filed in the circuit court of the Second district of Tallahatchie county, Mississippi, about November 1, 1924. On January 12th, 1925, said Hill filed his voluntary petition in bankruptcy in the district court of the United States of the Delta Division for the Northern District of Mississippi, which said petition is made an exhibit to the bill of complaint, and immediately the said district court duly entered an order adjudicating said Hill bankrupt. Defendants admit that the records of the United States court show in the happening of said adjudication, but do not admit that the said adjudication affects said defendant's right in this proceedings, because of the judgment taken in said circuit court hereinafter referred to. Thereafter in the said circuit court of Tallahatchie county in the said proceeding mentioned heretofore, the judgment was entered, which is made Exhibit `D' to the bill of complaint; that in said matter, the general docket of said court of Tallahatchie county has the entries thereon, as shown by instrument marked Exhibit `A' hereto, and further, that the court file in said cause has been lost, and cannot be found and copies of the pleadings cannot be supplied; that defendant, C.H. Thompson, is the same person mentioned in the voluntary bankruptcy proceedings heretofore referred to, and the indebtedness of one thousand five hundred dollars, therein mentioned is the indebtedness upon which the said judgment, Exhibit `D' to said bill of complaint is predicated and mentioned in the judgment, but that the judgment speaks for itself. Thereafter, in March, 1925, execution was issued on said judgment Exhibit `D,' directed to the sheriff of Sunflower county, and returned nulla bona on April 14th, 1925. Said judgment, Exhibit `D' was enrolled in Sunflower county, on the 27th day of March, 1925. Said Hill acquired by deed recorded in Book M-7, page 402 in the office of the clerk of the chancery court of Sunflower county, Mississippi, the lands described in the notice of sheriff's sale under execution, Exhibit `C' to the bill of complaint, which said deed was dated January 28, 1926, a copy of which said deed, with the date of its filing in said office, is made a part of this stipulation. On June 29, 1925, said Hill was discharged as a bankrupt, as shown by the discharges in bankruptcy made Exhibit `B' to the bill of complaint. Said Thompson did not file his claim in said bankruptcy proceedings, but on March 20, 1925 filed his petition, a copy of which is hereto attached, and obtained the entry of an order, a copy of which is hereto attached. On the 29th day of December, 1927, execution was issued on said judgment, Exhibit `D,' a copy of which said execution is made a part of this agreement, and that the sheriff of Sunflower county levied upon and advertised for sale said property, as shown by said notice made Exhibit `C' to the bill of complaint; that in June 1927, said Hill, through his attorneys, took up with C.H. Thompson the request to execute a waiver of the said judgment lien, so as to allow the said Hill to secure a renewal loan from the Liberty Mortgage Company on his farm lands near Rome in Sunflower county, and that an instrument waived said lien as to said farm lands for said purpose, and said instrument is duly filed and recorded in Book P-7, 394 and 395 of the Land Records in the office of the chancery clerk in Indianola, Sunflower county, Mississippi, a copy of which is made Exhibit `B' hereto.
"It is agreed that in case that injunction should be dissolved and in case the court should hold that the five per cent mentioned by the statute did not apply, that two hundred dollars will be a reasonable attorney's fee and that the cost of advertising is eighteen dollars and fifty cents."
It will be observed from the agreed facts that, when the appellant obtained the judgment against appellee, the latter had been duly adjudged a bankrupt under the Federal Bankruptcy Act, but that the promissory note upon which the judgment was founded was due and payable when the appellee was adjudged a bankrupt, and also at the time of the institution of the bankruptcy proceedings, and that appellee's discharge in bankruptcy took place some months after the rendition of the judgment. The ground upon which appellee sought to enjoin the execution of the judgment was that his discharge in bankruptcy had the effect, under the Federal Bankruptcy Act, to discharge him from further liability on the judgment. There were attached to appellee's bill copies of all the papers in the bankruptcy proceedings, which showed that the note sued on in the state court rendering the judgment sought to be enjoined, as well as the forthcoming bond executed by appellee for the return of the cotton distrained for rent, were duly scheduled as a part of his liabilities. Appellee set out in his bill such discharge in bankruptcy as a release from further liability on the judgment and the note and forthcoming bond upon which the judgment was founded. Appellant, along with all of the other creditors of appellee, had due notice of the bankruptcy proceedings.
Under the Bankruptcy Act of 1898 (11 U.S.C.A.), a judgment entered against a defendant upon a provable debt existing at the time he was adjudged a bankrupt, but rendered before his final discharge in bankruptcy, is canceled by such discharge, and, after his discharge, the bankrupt has the right to a perpetual stay of the judgment. 3 R.C.L., section 141, pp. 318, 319.
Appellant takes the position, however, that the bond executed by appellee for the forthcoming of the cotton distrained was not such a liability on the part of appellee as to constitute a provable debt under the Bankruptcy Act, and therefore the judgment upon the bond was not annulled by appellee's discharge in bankruptcy. The Bankruptcy Act of 1898 is substantially the same as the Bankruptcy Act of 1867 (14 Stat. 517) with respect to the character of debts which are provable in bankruptcy. Wolf v. Stix, 99 U.S. 1, 25 L.Ed. 309, was decided under the Bankruptcy Act of 1867. After Wolf had been discharged in bankruptcy, he filed his bill in equity to enjoin the enforcement of a judgment against him recovered in a state court. In the action in the state court, his goods were attached, and he gave a forthcoming bond to return the goods to the officer seizing them or pay the value thereof in event of a judgment against him. On the trial, a judgment was rendered against Wolf on the forthcoming bond for the value of the goods. The question was whether or not his discharge in bankruptcy annulled that judgment. The court held that a debt created by a forthcoming bond was provable under the Bankruptcy Act, although it was payable upon the happening of an event which might never occur, and was therefore contingent. The bond in that case was in force when Wolf was adjudicated a bankrupt, and the court held that the sum to be paid was certain in amount, notwithstanding the event might not occur which would require payment, and, if the event did occur, the amount to be paid was fixed; that, in all cases of contingent debts and liabilities, the creditor may make claim therefor and have his claim allowed, with the right to share in the dividends if the contingency happens before the order for the final dividend.
In the present case, the contingency happened before appellee's discharge in bankruptcy. The contingent liability on his forthcoming bond had become fixed by the judgment of the court before that time. Appellant argues, however, that such rule does not apply where the effect would be to discharge the lien of the judgment creditor on property for which the judgment debtor gave a forthcoming bond. Appellant had a landlord's lien on fifteen bales of cotton, which appellee took under his forthcoming bond. That lien was not displaced by the bankruptcy of appellee under the bankruptcy statute. Appellant contends that appellee should not be permitted to set up his discharge in bankruptcy in satisfaction of the judgment on the forthcoming bond, for so to do would deprive appellant of the benefit of his landlord's lien on the cotton covered by the forthcoming bond which he held as security for the indebtedness due him by the appellee. We think a complete answer to that argument is that, under our code chapter on landlord and tenant, the replevin or forthcoming bond which the tenant is authorized by the statute to execute, and receive back from the officer the property distrained, such a bond takes the place of the lien of the landlord in case it is breached by failure of the tenant to return the property to the officer in obedience to the judgment of the court. Under this bond, the tenant takes the property with the option of either holding it to abide the judgment of the court, or disposing of it freed from the landlord's lien, and, if he pursues the latter course, as appellee did, the bond stands instead of the lien as the landlord's security for his rent. In other words, after giving the forthcoming bond by the tenant, the lien of the landlord is released from the property distrained, and the landlord is relegated to the bond, if the tenant so elects. The bond is a new obligation, a liability of the tenant and his sureties on the bond, which takes the place of the liability of the tenant alone, secured by the lien on the property distrained. It is not a case, therefore, where the lien of the landlord is displaced by the Bankruptcy Act, but it is a case where the lien is displaced by the operation of the laws of the state in which the court rendering the judgment was situated.
Appellant contends, however, that appellee was barred from setting up his discharge in bankruptcy in satisfaction of the judgment the execution of which was sought to be enjoined, on the ground that that question is res adjudicata. This contention arises out of the following facts: In the action in the state court, the appellee set up the fact that at that time he had been adjudicated a bankrupt under the Federal Bankruptcy Act, and that therefore the cause in the state court ought not to proceed further. Appellee failed to present to the state court sufficient evidence that he had been so adjudged a bankrupt, and the state court recited in its judgment the absence of such proof, and adjudged that appellee had not been so adjudged. Appellant's position is that, by reason of that judgment of the state court, appellee was concluded from setting up his discharge in bankruptcy in satisfaction of the judgment. We think this contention is without merit. The pendency of bankruptcy proceedings against appellee, and the fact that in such proceedings he had been adjudged a bankrupt at the time the judgment was rendered in the state court, had no bearing on the question whether or not the appellant had a right, under the law, to proceed to judgment in the state court. An adjudication in bankruptcy is no bar to an action against a bankrupt by a creditor to reduce his claim to judgment. In such an action, the bankrupt may suggest that bankruptcy proceedings are pending against him and that he has been adjudicated a bankrupt, and ask that the action in the state court be suspended to await further proceedings in the bankrupt court, but it is discretionary with the state court whether it will do so or not. Orgill Bros. v. Coleman, 146 Miss. 217, 111 So. 291; Cantrell v. Peugh, 149 Miss. 21, 115 So. 116. Therefore the issue presented to the state court by the appellant's suggestion of bankruptcy was wholly a collateral and immaterial issue. It did not go to the merits of the action in the state court. No judgment is conclusive of any matter not required to support it. If the language of the judgment is general, it will be restrained to the issues made in the case and to the subject-matter under consideration, by the court. Even if the judgment purports to affirm a particular fact or rule of law, yet, if such fact or rule of law was immaterial and collateral to the issues in the case, and the controversy did not turn upon it, the judgment will not concluded the parties in reference thereto. 2 Freeman on Judgments, p. 1474. We are of the opinion that the appellee's suggestion to the state court of the pendency of the bankruptcy proceedings and that he had been adjudged a bankrupt had nothing to do with the merits of the action in the state court. It involved alone the question whether the state court would proceed with the action or suspend it to await the progress of the bankruptcy proceedings.
Appellee, in June, 1927, induced appellant to execute a waiver of the lien of his judgment against appellee, so as to enable the latter to secure a renewal loan from the Liberty Mortgage Company on his lands in Sunflower county. This waiver was duly executed by the appellant and placed of record. Appellant contends that that action on the part of appellee, namely requesting appellant to waive the lien of his judgment, and accepting such waiver and taking advantage thereof, constituted a waiver on the part of appellee of his discharge in bankruptcy in so far as the judgment was concerned. In other words, that that action on the part of appellee was an acknowledgment that the judgment was alive and outstanding, and a promise to pay the same. Although a discharge in bankruptcy extinguishes the debt of the bankrupt as a legal liability, still the moral obligation of the bankrupt is not extinguished, and constitutes sufficient consideration for a new promise by the debtor to pay the debt, which new promise may be enforced against him. But, in order to constitute an enforceable new promise on the part of the bankrupt debtor, there must be a clear, distinct, and unequivocal recognition and renewal of the debt as a binding obligation. The promise to renew must be express. Partial payments are not sufficient to renew the debt. Nor is a mere recognition of the duty to pay a debt not amounting to a clear expression of intention on the part of the debtor to bind himself to pay the debt sufficient. 7 C.J., p. 412, section 732, and cases in the notes; 3 R.C.L., pp. 147, 148. We are unable to see how the fact that the appellee induced appellant to execute a waiver of the lien of his judgment constituted an express promise on the part of appellee to pay the debt.
Appellant contends further that the chancery court was without jurisdiction to enjoin the execution of the judgment involved, for the reason that the appellee had a plain and adequate remedy at law by motion to quash the execution and a writ of supersedeas in the court in which the judgment was rendered. It may be conceded, for argument's sake, that the appellee did have a plain and adequate remedy at law, still, under section 147 of the Constitution and section 3401, Hemingway's 1927 Code (Code 1906, section 4920), the decree of the chancery court cannot be reversed by this court upon that ground alone; there being no other error in the rendition of the decree. It is provided, in substance, by that section of the Constitution, and also by the statute referred to, that no judgment of the chancery court rendered in a civil cause shall be reversed or annulled upon the ground of want of jurisdiction to render said judgment or decree, because of any error or mistake as to whether the cause in which it was rendered was one of equity or common-law jurisdiction, unless the supreme court shall find error in the proceeding other than as to jurisdiction, and it shall be necessary to remand the case. Numerous decisions have been rendered by this court construing that provision of our Constitution and the statute enacted in pursuance thereof, which will be found annotated in the Code thereunder.
Affirmed.