174 F. 805 | 9th Cir. | 1909
(after-stating the facts as above). The question presented on the petition is the construction to be placed upon section 4585, Ballinger's Ann. Codes & St. Wash, (section 6547, Pierce’s Code), which provides that;
“All conditional sales of personal property or leases' thereof containing a conditional right to purchase, where the property is placed in the possession of the vendee, shall be absolute as to the purchasers, incumbrancers, and subsequent creditors in good faith, unless within ten days after taking possession by the vendee, a memorandum of such sale, stating its terms and conditions, and signed by the vendor and vendee, shall be filed in the auditor’s office of the county wherein, at the date of the vendee’s taking possession of the property, the vendee resides.” . i
The petitioner contends that the purpose of the statute is to give notice to persons who might become creditors of the vendee, and that, inasmuch as the memorandum of the conditional sale was recorded prior to the time when any of the creditors of the bankrupt extended credit, they are charged with constructive notice of the rights of the vendor, and were therefore not subsequent creditors in good faith, within the term’s of the statute.
Ordinarily, certain instruménts, such as deeds and mortgages, may be recorded at any time after their execution, and the record will be effective as against all claims attaching subsequently, unless there have .been such circumstances and unreasonable delay as to constitute laches, and ordinarily statutes in regard to the registration of such instruments, while requiring that they be filed within a certain time, are not to be so construed as to render them void as to subsequent lienors with notice if not so recorded. But the statute of Washington, in regard to
Cases in point are Bugbee v. Stevens, 53 Vt. 389, and In re Bosch (D. C.) 121 Fed. 602. The petitioner cites Sayward v. Nunan, 6 Wash. 87, 32 Pac. 1022, as affording a construction of a similar stat--nte of the state. In that case the court, said that the failure to record the bill of sale within 10 days would protect only such parties as had obtained intervening rights after its execution, and before it was filed for record, hut the language of the court in that case had reference to the failure to record an absolute hill of sale, in a case where the property sold remained in the possession of the vendor, and the construction to be given to a section of the statute which declared that no bill of sale for the transfer of personal property' should he valid as against existing creditors or innocent purchasers when the property was left in the possession of the vendor, unless the hill of sale he recorded within 10 days after the date thereof. The decision casts no appreciable light on the question of the construction of the statute which is involved in the present case.
The petitioner contends that since, in any view of the effect -of the statute, title upon a conditional sale does not pass as between the vendor and the vendee, the trustee acquires no greater interest in the property than the vendee had. But the trustee in bankruptcy is not in the attitude of a mere assignee of pn erty for the benefit of creditors, who takes only the title of his assignor, and is not affected by statutes requiring registration of conditional sales, as is held in such cases as Peet v. Spencer, 90 Mo. 384, 2 S. W. 134; Tufts v. Thompson, 22 Mo. App. 564; Thomas Mfg. Co. v. Huff, 62 Mo. App. 124; Adams v. Lee, 64 N. H. 421, 13 Atl. 786; Warner v. Jameson, 52 Iowa, 70, 2 N. W. 951; and other cases. Under the bankruptcy law, the interest which passes to the trustee in personal property sold to the bankrupt upon condition depends upon the law of the state. In jurisdictions where the statute makes such an unrecorded conditional sale absolute as to subsequent purchasers, pledgees or mortgagees in good faith, and to no others, the failure to record docs not affect the title of the vendor as against the vendee’s trustee. Hewitt v. Berlin Mach. Works, 194 U. S. 296, 24 Sup. Ct. 690, 18 L. Ed. 986. But, if, as
The petition must be dismissed.