141 P. 1120 | Or. | 1914
delivered the opinion of the court.
The controlling question in this case is whether or not the court erred in refusing to allow the plaintiff to prove in his case in chief the allegations of his reply respecting the bulk sale of the property to the defendant by the corporation, and in directing a verdict for the defendant. The statute affecting such transfers, as it stood at the time of the transaction, is found in Sections 6069, 6070, L. O. L.:
“It shall be the duty of every person who shall bargain for or purchase any stock of goods, wares, or*427 merchandise in bulk, for cash or on credit, to demand and receive from the vendor thereof, and if the vendor be a corporation then from a managing officer or agent thereof, at least five days before the consummation of such bargain or purchase, and at least five days before paying or delivering to the vendor any part of the purchase price or consideration therefor, or any promissory note or other evidence of indebtedness therefor, a written statement under oath containing the names and addresses of all of the creditors of said vendor, together with the amount of indebtedness due or owing, or to become due or owing, by said vendor to each of such creditors, and if there be no such creditors, a written statement under oath to that effect; and it shall be the duty of such vendor to furnish such statement at least five days before any sale or transfer by him of any stock of goods, wares, or merchandise in bulk”: Section 6069, L. O. L.
“After having received from the vendor the written statement under oath mentioned in section 6069 the vendee shall, at least five days before the consummation of such bargain or purchase, and at least five days before paying or delivering to the vendor any part of the purchase price or consideration therefor, or any promissory note or other evidence of indebtedness for the same, in good faith notify or cause to be notified, personally or by wire or by registered letter, each of the creditors of the vendor named in said statement, of the proposed purchase by him of such stock of goods, wares, or merchandise; and whenever any person shall purchase any stock of goods, wares, or merchandise in bulk, or shall pay the purchase price or any part thereof, or execute or deliver to the vendor thereof or to his order, or to any person- for his use, any promissory note or other evidence of indebtedness for said stock, or any part thereof, without having first demanded and received from his vendor the statement under oath as provided in section 6069, and without having also notified or caused to be notified all of the creditors of the vendor named in such statement, as in this section prescribed, such purchase,*428 sale, or transfer shall, as to any and all creditors of the vendor, be conclusively presumed fraudulent and void”: Section 6070, L. O. L.
Section 70 of the National Bankrupt Law provides:
“The trustee of the estate of a bankrupt, upon his appointment and qualification, # * shall in turn be vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt, * * ” to “property transferred by him in fraud of his creditors”; and “property which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold undet judicial process against him. * * The trustee may avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided, and may recover the property so transferred, or its value, from the person to whom it was transferred, unless he was a bona fide holder for value prior to the date of the adjudication. Such property may be recovered or its value collected from whoever may have received it, except a bona fide holder for value. For the purpose of such recovery any court of bankruptcy, as hereinbefore defined, and any state court which would have had jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction. ’ ’
The controlling proposition in such cases is that, if one would disturb a transaction which might otherwise be valid between the immediate parties to it, he must show his right to intermeddle. This is accomplished by establishing in a judicial proceeding that the former owner of the property was indebted to the claimant upon an unpaid demand. On behalf of the trustee the reason of the rule is satisfied in a bankruptcy proceeding, whereby it has been adjudicated that the debtor is insolvent and unable to pay his debts. The appointment and qualification of the trustee in such circumstances complete the demonstration of the reason, and show that he is entitled to the possession of the property for the purpose of applying it to the claims of the creditors. The principle finds expression in the words of the national statute which not only vests the title of the bankrupt’s property in the trustee, but also gives the latter the right to recover the same from whomsoever has possession of it, excepting only the purchaser in good faith. The conjunction of title and the right to possession in one and the same person, the trustee in such cases, constitute the basis for an action of replevin in his favor.
The questions of the ownership or possession of the note or the enforcement of the payment thereof are not before us. Giving the note does not take the sale out of the operation of the statute. We can only give effect to the terms of the act of the legislature respecting the property in question. The plaintiff was entitled to prove the course of the possession of the property from the bankrupt to himself, and the court was in error when it directed a verdict in favor of the defendant.
The judgment is reversed and the cause remanded for further proceedings.
Reversed and Remanded.