U.S. Supreme Court
Scott v. Ellery, 142 U.S. 381 (1892)
Scott v. Ellery
Submitted November 25, 1891
Decided January 4, 1892
142 U.S. 381
APPEAL FROM THE CIRCUIT COURT OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF IOWA
Sections 5105 and 5106 of the Revised Statutes relate to different classes of debts against a bankrupt, the former to debts that are proved, the latter to debts that are provable but not proved.
A mortgage creditor of a bankrupt obtained a decree for the foreclosure of the mortgage, under which the property was sold for less than the mortgage debt. He proved the remainder, deducting the amount received from the sale in the bankruptcy proceedings. After the discharge of the bankrupt, he obtained a decree in the foreclosure proceedings against the debtor for the balance due on the mortgage debt. Held that by proving his debt in bankruptcy, he waived his right, pending the question of discharge, to take a deficiency decree against the bankrupt; that after the discharge, the right to such a decree was lost altogether; that the debtor was not bound, after his discharge, to give any attention to the foreclosure suit, and that under the circumstances the obtaining a deficiency decree amounted to a fraud in law.