206 F. 250 | 6th Cir. | 1913
(after stating the facts as above).
However, it is said that this pledge or lien cannot be enforced against the bankruptcy trustee by reason of section 1908 of the Kentucky Statutes, quoted in the margin.1 This statute is as to the present question substantially equivalent to section 496. The meaning and effect of this latter section have been more than once under consideration by this court, the last time in Crucible Steel Co. v. Holt, 174 Fed. 127, 98 C. C. A. 101 (and see In re Martin, 193 Fed. 841, 113 C. C. A. 627, and In re Huxoll, 193 Fed. 851, 113 C. C. A. 637). Our opinion was reviewed and affirmed by the Supreme Court in Holt v. Crucible Steel Co., 224 U. S. 262, 32 Sup. Ct. 414, 56 E. Ed. 756. These cases construe the decisions of the Kentucky Supreme Court as holding that the statutory term “creditors” includes only those who have affirmatively fastened a lien upon the property, and not those who have only a right to get a lien; and as it had been held in York v. Cassell, 201 U. S. 344, 26 Sup. Ct. 481, 50 L. Ed. 782, that bankruptcy did not operate, through the agency of the trustee, to materialize and attach such a mere right to have a lien, it followed that an unrecorded mortgage was, in Kentucky, good as against- the general rights of a bankruptcy trustee.
1 “§ 1908: Every voluntary alienation of or charge upon personal property, unless the actual possession, in good faith, accompanies the same, shall be void as to a purchaser without notice, or any creditor, prior to the lodging for record of such transfer or charge in the office of the county court for the county where the alienor or person creating the charge resides.”
5. The bank’s right to lien or set-off attached only to the deposit as it existed when the petition in bankruptcy was filed. It cannot attach to the deposits made at a later hour. No question of intent to give or receive a preference is reached in this case, and it is immaterial whether either the bank or the bankrupt knew that the petition had been filed; the payment of the remainder of the note was unauthorized. True, the lack of power to make the payment was dependent on the contingency that the proceedings should ripen into an adjudication, but the contingency did happen, and the bankrupt’s title failed, by relation, as of the moment of filing the petition. Rverett v. Judson, supra. The trustee is entitled to decree for $142, with interest at the legal rate since the payment.
The trustee will recover the costs of this court upon the appeal, and the record he remanded for further proceedings in accordance herewith.