193 F. 350 | 8th Cir. | 1912
This case involves the right of the Nauman Company to a fund in the hands of the trustee of the estate of the Des Moines Department Store Company, a bankrupt. Prior to the bankruptcy proceedings the claimant sold and installed for the bankrupt some fixtures and furniture under written contracts of conditional sale reserving title, and filed a claim for a mechanic’s lien upon the articles sold and the realty on which they were placed. The contracts of conditional sale were not acknowledged and recorded as required by the law of Iowa w-here the transactions occurred. Shortly afterwards the Store Company was adjudged bankrupt in involuntary proceedings. The trustee desiring to sell part of the articles in question, and the claimant objecting, it was stipulated that-the sale might be made and the proceeds held as a separate fund in lieu of the property an'd to abide the determination of claimant’s right or lien. Later the trustee sold the balance of the articles without the consent of the claimant, and now has in his possession the proceeds of both sales. Before the expiration of the year succeeding the adjudication the claimant commenced a 'suit in a state court to foreclose' its mechanic’s lien and made the trustee a party defendant. After the year expired the trustee applied to the District Court to enjoin the prosecution of the suit, and an injunction was'ordered but not made of record under an.agreement of the claimant to observe it as though actually entered and served.
We do not think a departure from the rule of Hewit v. Berlin Machine Works and York Mfg. Co. v. Cassell is shown in Security Warehousing Co. v. Hand, 206 U. S. 415, 27 Sup. Ct. 720, 51 L. Ed. 1117, or Knapp v. Trust Co., 216 U. S. 545, 30 Sup. Ct. 412, 54 L. Ed. 610. Both cases last cited arose in Wisconsin. The first involved the rights, as against a trustee in bankruptcy, of holders of alleged warehouse receipts issued by a pretended warehousing .company and purporting to cover property of the bankrupt which had never left its possession. It was held that under the state law the scheme was a fraud in fact and the receipts were not valid as against the trustee. The distinction between a fraud in fact and a mere failure to record an instrument which should be recorded was pointed out, and the doctrine of the Hewit and York Mfg. Co. Cases was restated atid reaffirmed but distinguished. In the second of the Wisconsin cases a chattel mortgage was held fraudulent in law conformably to local decisions be
The order is reversed, and the cause is remanded! for further proceedings in conformity with the above.