MARTIN v. ORGAIN, 174 F. 772

PARDEE, Circuit Judge (after stating the facts as above). Under the agreed statement of facts, the appellant has by contract in writing- a lieu for the amount of rent due and to become due, and she also has such lien by force of the statutes of the state of Texas.

Article 3251, Sayles’ Tex. Ann. Civ.

St. 1897, reads as follows: “All persons leasing or renting any residence, storehouse or other building, shall have a preference lien upon all the property of the tenant in such residence, storehouse or other building, for the payment of the rents due and that may become due; provided, the lien for rents to become duo shall not continue to be enforced for a longer period than the current contract year, it being intended by the term ‘current contract year’ to embrace a period of twelve months, reckoning from the beginning of the lease or rental contract, whether the same be in the first: or any other year of such lease or rental contract.

Such lien shall continue and be in force so long as the tenant shall occupy the rented premises, and for one month thereafter; but this

article shall not be construed as in any manner repealing or affecting any act exempting property from forced sales.” This lien is good and valid in cases like the present for -rent due and to become due. See Marsalis v. Pitman, 68 Tex. 624, 5 S. W. 404; Livingston v. Wright, 68 Tex. 706, 5 S. W. 407; Allen v. Brunner, 33 Tex. Civ. App. 128, 75 S. W. 821; Bateman v. Maddox, 86 Tex. 546, 26 S. W. 51. Under the agreed facts, the lien claimed herein was given and accepted in good faith and for a present consideration. It is not pretended that it was given in fraud of the bankruptcy "law, or that record thereof Was necessary to impart notice.

Section 67d of the bankruptcy law (Act July 1, 1898, c. 541, 30 Stat. 564 [U. S. Comp. St. 1901, p. 3449]) reads: “Liens given or accepted in good faith and not in contemplation of or in fraud upon this act, and for a present consideration, which have been recorded according to law, if record thereof was necessary in order to impart notice, shall not be affected by this act.”

Section 64b of the same law reads: “The debts to have priority except as herein provided and to be paid in full out of bankrupt estates, and the order of payment shall be * * * (5) debts owing to any person who by the laws of the states or the United States is entitled to priority.” Against this showing of statutory and declaratory law in favor of the appellant’s claim, it is urged (and the referee and the District Court so ruled) that although the appellant’s claim by contract and statute is valid, and although her lien is not affected by the bankruptcy law, yet her claim of lien must be denied because “of the uncertainty existing with reference thereto, and because of such fact it was not and could not have been a fixed liability owing by the bankrupt at the date of bankruptcy.” The argument is that the claim is contingent — e. g., the leased premises may be destroyed before the rent becomes payable, and this renders the claim nonprovable under

section 63 of the bankruptcy law. It may be noticed here that at the time the referee made his decision respecting- the appellee’s claim all the rent claimed had become due. As to this aspect of the case, we refer to Judge Brown’s opinion in Re Smith (D. C.) 146 F. 923, as strongly persuasive, if not convincing.

In his well-considered opinion the referee says: “It is my understanding of tbe law that a provable debt is a sum of money absolutely owing at tlie commencement of the proceedings in bankruptcy, certainly. and in all events, payable without regard to the fact whether then due, past due, or.to become due; that is, it must be at the date of the bankruptcy a fixed liability. This does not have reference to unliquidated demands and claims of creditors holding securities.” If a contract and a statute can fix a liability, it must be conceded that it was fixed in this case.

Without conceding- that appellant’s claim is required to be proved under

section 63, or that it may not be provable under clause 1 or 4 of that

section as a fixed liability-founded upon an express contract evidenced by an instrument in writing and absolutely owing at date of filing petition, we are of opinion that

section 63 relates principally to unsecured debts, and that all creditors who wish to participate in creditors’ meeting’s and dividends must bring their cases under some one of the heads therein specified, hut that in relation to claimed liens, such as here presented,

section 57, Proof and Allowance of Claims,

section 63, Debts Which may be Proved,

section Cl, Debts Which Have Priority, and

section 67, Riens, should be construed together and to the effect that a lien under a state law given in good faith, not impaired or affected by the bankruptcy law, should be allowed and given its legal priority. Industrious counsel have cited in argument, and we have examined, the following reported cases: Longstreth v. Pennock, 20 Wall. 575, 22 L. Ed. 451; In re Byrne (D. C.) 97 Fed. 762; In re Mahler (D. C.) 105 Fed. 428; Atkins v. Wilcox, 105 Fed. 595, 44 C. C. A. 626, 53 L. R. A. 118; In re Hoover (D. C.) 113 Fed. 136; In re Mitchell (D. C.) 116 Fed. 87; Watson v. Merrill, 136 Fed. 359, 69 C. C.

A. 185. 69 L. R. A. 719; In re McIntire (D. C.) 142 Fed. 593; In re Smith (D. C.) 146 Fed. 923; In re West Side Paper Co., 162 Fed. 110, 89 C. C. A. 110; In re Pittsburg Drug Co. (D. C.) 164 Fed. 482, all involving questions pertinent to the discussion of this case, and we find in none of the reported opinions anything really inconsistent with the views herein expressed. It is not necessary to review them further than to note that in neither Watson v. Merrill, supra, nor In re Mahler, supra, much relied upon by the referee, is the matter of a landlord’s lien dealt with, and that in Atkins v.

Wilcox, also cited by counsel for trustee, that the effect of the state lien was not considered. For the reasons given, the judgments of the referee and of the district court are reversed, and the cause is remanded, with instructions to allow the lien appellant claims for the amount agreed to be due thereon, to wit, $1,363.80, and order payment of the same out of the reserved funds in the hands of the trustee.