166 F. 972 | N.D. Iowa | 1909
Numerous motions are filed by the respective parties to strike the abstracts of evidence and briefs of the others. They are each and all overruled.
William J. Hager, a dealer in agricultural implements at Wesley in this district, was adjudged bankrupt by this court January 15, 1908, upon his own petition filed January 13, 1908. A trustee of his estate was duly appointed, who, upon qualifying, took possession of the bankrupt’s stock of agricultural implements, including the property involved in these controversies. Deere & Mansur Company, Deere & Company, and the Racine-Sattley Company (hereinafter for convenience called the implement companies) presented to the referee their several petitions claiming separate portions of the property so in custody of the trustee upon the ground that the property so claimed had been sold by them, respectively, to the bankrupt under written contracts of sale whereby each reserved the title to and right of possession of the property sold by it until it should be fully paid for in cash (which it was stipulated upon the hearing before the referee had not been done), and E. A. Studer presented a petition in which he claimed of the trustee all of the property under a chattel mortgage made by the bankrupt to him April 4, 1907, but which was not recorded until December 16th, prior to the filing of the petition in bankruptcy. The referee denied the claim of each of the petitioners, and they severally petition for a review of such orders.
The contracts of the implement companies under which they, respectively, claim portions of the property so in possession of the trustee, are substantially alike. That of Deere & Mansur Company contains the following provisions:
“That the title to and ownership oi' all goods shipped under this contract shall remain vested in Deere & Mansur Co., until the price thereof shall be paid in cash, and until all notes given iherefor and to be given under this contract are paid, and the said Deere & Mansur Co., shall be entitled to possession of the same whenever they may feel insecure, or whenever I or we (the bankrupt) may become insolvent or bankrupt.”
The others contain a like provision.
The question of the priority of right between the vendor under such a conditional contract of sale, not recorded as required by the Iowa statute, and the trustee in bankruptcy of the conditional vendee, was considered by this court in Re Tweed (D. C.) 131 Fed. 355, and in Re Smith & Shuck (D. C.) 132 Fed. 301, and it was held, following the decision of the Court of Appeals this circuit in Re Pekin Plow Co.. 121 Fed. 308, 50 C. C. A. 257, and other cases, that such priority was in the trustee in bankruptcy. Since these decisions, however, the Supreme Court of the United States and the Court of Appeals this circuit have held that the trustee in bankruptcy succeeds only to the rights of the bankrupt in property owned or claimed by him at the time of the bankruptcy, and, in cases unaffected by fraud, “takes such title in the same plight and condition .that the bankrupt himself held it, and subject to all of the equities impressed upon it in his hands.” York Mfg. Co. v. Cassel, 204 U. S. 344, 26 Sup. Ct. 481, 50 L. Ed. 782; In re Newton & Co., 153 Fed. 641-845, 83 C. C. A. 23; Dunlop v. Mercer, 156 Fed. 545, 86 C. C. A. 435.
The claim of Studer rests upon a chattel mortgage made to him by the bankrupt April 4, 1907, but not recorded until within a month before the petition in bankruptcy was filed. The referee found from the evidence that the bankrupt when he made this mortgage was insolvent and intended by it to prefer Studer, and that Studer at such time and also when the mortgage was filed for record had good reason to believe him to be insolvent, and that such preference was intended, and upon these grounds denied the claim. This finding of the referee is amply sustained by the testimony. But the trustee stands in the shoes of the bankrupt, and is in no position to contest the validity of the claims of the conditional vendors to their property because it is included in the mortgage to Studer. On the other hand, Studer may hold as against the conditional vendors any property included in his mortgage and claimed by them under their unrecorded contracts of conditional sale, unless he had actual notice thereof at the time of or before taking his mortgage, though the mortgage was not recorded. Union Bank v. Creamery Package Mfg. Co., 105 Iowa, 136, 74 N. W. 921. As to the implement companies, then, the mortgage of Studer may be good as to any of their property included therein, unless Studer had notice of their conditional contracts, of which there is no evidence, or finding by the referee. The mortgage, however, does not cover after-acquired property, and does not, therefore, cover any property obtained by the bankrupt from the implement
Upon the petitions of Deere & Mansur Company, Deere & Company, and Racine-Sattley Company, the orders of the referee will therefore he set aside, and the matter of each of said petitions referred back to him to ascertain and determine what of the property so coming to the possession of the trustee was sold and delivered to the bankrupt by each of said petitioners both before and since the date of the mortgage, and award to the petitioner Sluder the property so sold and delivered by them to the bankrupt prior to the date of the mortgage, and to. the Deere & Mansur Company, Deere & Company, and. the Racine-Sattley Company the property so sold and delivered by them, respectively, since the date of the mortgage. In all other respects the order of the referee upon the petition of ⅛. A. Studer is approved.
The implement companies complain of the action of the referee in permitting Studer and the trustee to offer further testimony after all parties had rested on March 4, 1908; but the record of the referee shows that on that date by consent of all parties the hearing was continued to May 15, 1908, and that on that date all parties appeared before him and the matters finally submitted. The implement companies did not offer any further testimony, or request that they be permitted to do so. Had they made such request they would undoubtedly have been permitted to offer any further testimony that they desired to. They are in no position to complain of the action of the referee.
It is ordered accordingly.