| Kan. Ct. App. | Jun 16, 1919
— Plaintiff is a trustee in bankruptcy of the estate of J. H. Woodruff and he brought this action against defendant charging it with converting certain personal property claimed by defendant under a chattel mortgage from Woodruff. The judgment in the trial court was for the plaintiff.
It appears that the mortgage was executed on the 30th of June, 1914, on a plumbing stock of merchandise and fixtures, for advances made to Woodruff on that day. The mortgage was recorded on the 2nd day of July, 1914. It provided that Woodruff should remain in possession of the property until default in the debt, but contained no provision requiring him to account for sales. Near six months after the debt became due defendant on June 24, 1915, took possession of the property and, on the 15th of July, 1915, sold it under provisions in the mortgage, to a third party.
On July 14, 1915, the day before this sale, and about three weeks after defendant took possession, a petition in bankruptcy was filed against Woodruff. He was afterwards declared a bankrupt and this plain
The law in this State is that a mortgage is not valid against any other person than the parties thereto unless possession he taken by the mortgagee, or the mortgage be recorded. [Sec. 2861, R. S. 1909.] And although a mortgage may be in proper form and duly recorded, yet if the mortgagor remains in possession and sells the property, in- the usual course, without accounting to the mortgagee for the proceeds, it is a conveyance to the mortgagor’s own use and void as against creditors. [Sec. 2880, R. S. 1909.]
But though the mortgagee neither takes possession nor records his mortgage, and though he permits the mortgagor to sell the property in the usual course of trade to his own use, yet if he takes possession before creditors become lien creditors by laying hold of the property, it validates the mortgage as to such creditors. [Greeley v. Reading, 74 Mo. 309" court="Mo." date_filed="1881-10-15" href="https://app.midpage.ai/document/greeley-v-reading-8006894?utm_source=webapp" opinion_id="8006894">74 Mo. 309; Dobyns v. Meyer, 95 Mo. 132" court="Mo." date_filed="1888-04-15" href="https://app.midpage.ai/document/dobyns-v-meyer-8009266?utm_source=webapp" opinion_id="8009266">95 Mo. 132; Petring v. Chrisler, 90 Mo. 649" court="Mo." date_filed="1886-10-15" href="https://app.midpage.ai/document/petring-v-chrisler-8008894?utm_source=webapp" opinion_id="8008894">90 Mo. 649, 654; Nash v. Normant, 5 Mo. App. 545" court="Mo. Ct. App." date_filed="1878-04-16" href="https://app.midpage.ai/document/nash-v-norment-8258085?utm_source=webapp" opinion_id="8258085">5 Mo. App. 545, 547.]
The next question is, how does the bankruptcy act affect these rights thus founded on the Missouri law?
It is provided by section 60b, of the Bankruptcy Act as amended June 25, 1910, C. 412, 36 U. S. Stat. 838, 842, that “If a bankrupt shall . . . have made a transfer of any of his property, and if, at the time of
It is also provided in section 47a of such Bankruptcy Act that trustees in bankruptcy shall collect the estate of the bankrupt and that they “as to all property not in the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies and powers of a judgment creditor holding an execution duly returned unsatisfied. ’ ’
Under the provisions last quoted it is important to ascertain what the rights of a judgment creditor with nulla bona execution are when based on facts like the present; and at what time do those rights accrue to the trustee. Answering the first question first, we find that a judgment creditor with execution returned unsatisfied has some important remedial rights not possessed by the ordinary'creditor at large; as, for instance, he may sustain an action to set aside his debtor’s fraudulent' conveyance (Merry v. Freeman, 44 Mo. 518" court="Mo." date_filed="1869-10-15" href="https://app.midpage.ai/document/merry-v-fremon-8002674?utm_source=webapp" opinion_id="8002674">44 Mo. 518, 521; Mullen v. Hewitt, 103 Mo. 639" court="Mo." date_filed="1890-10-15" href="https://app.midpage.ai/document/mullen-v-hewitt-8010031?utm_source=webapp" opinion_id="8010031">103 Mo. 639, 650) or for discovery, as well as other remedies in equity. [McDermutt v. Strong, 4 Johns. Ch. 687" court="None" date_filed="1820-12-26" href="https://app.midpage.ai/document/mdermutt-v-strong-5550431?utm_source=webapp" opinion_id="5550431">4 Johns. Ch. 687; Brinkerhoff v. Brown, 4 Johns. Ch. 671" court="None" date_filed="1820-12-24" href="https://app.midpage.ai/document/brinkerhoff-v-brown-5550429?utm_source=webapp" opinion_id="5550429">4 Johns. Ch. 671; Angell v. Draper, 1 Vern. 999.] But in the respect like that here considered, he is in no better position than the ordinary creditor at large, since he, like the latter, has no claim or lien on the property until he initiates his remedy by bringing his appropriate action asserting his claim.
• In the present case we have seen that bankruptcy proceedings were begun on July 14, 1915, and at that time the mortgagee had been in possession of the merchandise for nearly three weeks, no creditor (judgment creditor, or other kind) having placed a lien thereon before he took possession, and the trustee not bringing this action for near a year thereafter. . The mortgagees claim was therefore superior to the claims, of judgment and other creditors; and as the trustees claim is measured by that of the creditors whom he represented, it follows that he has no claim as against the mortgagee. This is the view taken in Bonner v. First National Bank, 248 F. 692" court="5th Cir." date_filed="1918-02-11" href="https://app.midpage.ai/document/bonner-v-first-nat-bank-of-athens-8806728?utm_source=webapp" opinion_id="8806728">248 Fed. 692, and In re Capital City Car Co., 251 F. 664" court="D.N.J." date_filed="1918-05-28" href="https://app.midpage.ai/document/in-re-capital-city-cap-co-8808439?utm_source=webapp" opinion_id="8808439">251 Fed. 664 — decisions construing and based, upon Bailey v. Baker Ice Co. and Martin v. Commercial Bank, supra.
It sometimes happens that one becomes a creditor after-the date of the mortgage but before it is recorded or possession is taken. We have not taken account of a creditor’s rights in that situation, since such condition does not arise on the facts of this case.
It should be noted that since many of the earlier cases were decided, both in the State and federal courts, the Bankruptcy Act has .been amended. We have therefore confined- our examination of the case to the latest
The foregoing views lead to a reversal of the judgment. But there is another question in the record. Plaintiff claimed that notwithstanding defendant bank, as mortgagee, may have the superior right, it could only have such superiority in relation to the merchandise included in the mortgage; hut that defendant converted other goods belonging to the ' bankruptcy mortgagor. There is sufficient evidence in the record .to make a jury question of this claim.
The judgment will be reversed and the cause remanded.